| Fiji Islands - Ashok Kumar v The State - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
LABASA CRIMINAL APPEAL NO. HAA0008 OF 1995
BETWEEN
ASHOK KUMAR
Appellant
AND
STATE
Respondent
Counsel: Appellant in person
Miss Rice for Respondent
Hearing: 11th May 1995
Decision: 11th May 1995
ORAL DECISION OF PAIN J.
This is an appeal against sentence.
On the 9th May 1994 the Appellant was convicted in the Lautoka Magistrates Court on a charge of Larceny from a Dwelling. He was sentenced
to 12 months imprisonment suspended for l8 months.
On the 13th January 1995 he pleaded guilty in the Labasa Magistrates Court to a further charge of Larceny from a Dwelling. The sentencing
remarks of the Magistrate contain nothing more than the imposition of the sentence. The record states:
"In the circumstances I activate the one year's suspended sentence with immediate effect. As regards this offence, the accused
is sentenced to one year's imprisonment. This sentence to be consecutive to the sentence activated i.e. 2 years in all."
The activation of a suspended sentence is something that must be done with care and in accordance with certain principles. Basically
these are as follows:
1. The Court must first determine the appropriate sentence for the subsequent offence.
2. The Court should then consider activation of the suspended sentence imposed on a previous offence.
3. Normally the subsequent offence would warrant an immediate custodial sentence for the original suspended sentence to be
activated.
4. In terms of Section 30 of the Penal Code the suspended sentence should be activated unless it would be unjust to do so.
The principal reason for not activating a suspended sentence is the relative triviality of the subsequent offence.
5. If the suspended sentence is activated it should normally be ordered to run consecutively to the new immediate sentence
imposed on the further offence. The ordering of the two sentences to run concurrently should only be done in exceptional circumstances.
6. The court must then consider the overall or aggregate sentence to see whether it is just and appropriate for the total
criminality represented by both offences. If the total is excessive then the term of the consecutive suspended sentence should be
reduced.
From these procedures two further principles arise.
(a) Before a suspended sentence is activated, the Defendant should be given the opportunity to show cause why this should not
be done. (See Abdul Kutty v State Cr.Appeal No.33 of 1994 in the High Court of Fiji at Labasa).
(b) The Court should obtain particulars of the offence for which the suspended sentence was imposed. This is necessary to gauge
whether the total sentence to be imposed is appropriate for the overall criminality involved in the two offences.
In this case the procedures were not followed. The Appellant was not given any opportunity to show cause why the suspended sentence
should not be activated. The Magistrate had no information regarding the earlier offence to enable him to determine the overall criminality
involved.
In Abdul Kutty v State the activation of the suspended sentence was set aside because the proper procedures were not followed. This
issue has not been fully argued on this appeal. However there is nothing to suggest that the case was wrongly decided or distinguishable.
In these circumstances I ought to follow it and set aside the activation of the suspended sentence in this case.
That leaves the appeal against the sentence of 12 months imprisonment imposed for the further offence.
The offence of Larceny from a Dwelling is a serious matter under the Penal Code. A substantial maximum penalty is prescribed. This
case involved a breach of trust as the Appellant was living in the same house in which the complainant was a guest. Property of a
substantial value was taken. The offence was committed only seven months after a suspended sentence had been imposed upon the Appellant
for a similar offence. It is in the Appellant's favour that he pleaded guilty at the first opportunity and all the property was recovered.
Nevertheless this offence committed by this offender justifies an immediate prison sentence. The term of 12 months imprisonment imposed
by the Magistrate is quite a severe term but it is within the range appropriate for this offence committed by a person with a recent
previous conviction for the same offence. It is not manifestly excessive and the appeal against its imposition cannot succeed.
Accordingly I order as follows:
1. The order of the Magistrates Court at Labasa on the 13th January 1995 activating the suspended 12 months prison sentence imposed in
the Lautoka Magistrates Court on the 9th May 1994 is quashed.
2. The appeal against the sentence of 12 months imprisonment imposed in the Labasa Magistrates Court on the 13th January 1995
in respect of a charge of Larceny from a Dwelling on the 13th November 1994 is dismissed.
JUSTICE D.B. PAIN
Haa0008d.95b
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/1995/8.html
