IN THE HIGH COURT OF FIJI
At Labasa
Revisional Jurisdiction

REVIEW NO. 0010 OF 1995

IN THE MATTER of S.323 of the Criminal Procedure Code

- and -

IN THE MATTER of Labasa Criminal Case No. 620 of 1995

THE STATE

v.

VILIKESA SIGADROMUCALA

Applicant in Person

JUDGMENT

This case has very properly been referred to this Court by the Resident Magistrate, Labasa seeking the exercise by this Court of its revisional jurisdiction in respect of an order activating a suspended sentence of 6 months imprisonment which at the time of its activation on 8th September 1995, was incorrectly stated to be still operational.

Subsequently it was discovered that the suspended sentence had been imposed in May 1994 (NOT May 1995 as advised) and had an `operational period' of only 12 months and therefore had expired long before the present offence was committed on the 7th of September 1995.

Section 30 of the Penal Code comprehensively sets out the powers of a Court activating a suspended sentence. In particular subsection (1) relevantly states:

"Where an offender is convicted of an offence punishable with imprisonment committed during the operational period of a suspended sentence ... , then, unless the sentence has already taken effect, the court shall consider his case and deal with him ..."
(my underlining)

Clearly in this case the suspended sentence "(had) already taken effect" in so far as the `operational period' of its suspension i.e. 12 months had elapsed since its imposition.

In the circumstances the order activating the suspended sentence cannot be considered either legal or correct and is accordingly quashed.

The sentence of 3 months imprisonment imposed in respect of the present offence of Act With Intent To Cause Grievous Harm is entirely proper however and although somewhat lenient will remain unaltered.

(D.V. Fatiaki)
JUDGE

At Labasa,
25th October, 1995.
HAJ0010J.95B