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Prasad v The State [1996] FJHC 83; Haa0072j.96s (23 December 1996)

Fiji Islands - Parmendra Prasad v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 0072 96
(Nausori Criminal Case No. 363/96)

BETWEEN:

PARMENDRA PRASAD
s/o Bir Chand
Appellant

AND:

STATE
Respondent

The Appella person

Mr. N. Bhindi with Ms Rachel Olutimayin for the State

JUDGMENT

On his own plea on 231996 the appellant was sentenced to 12 months' imprisonment by the Magistrate's Court, Naus Nausori for the offence of embezzlement contrary to section 274(a)(ii) of the Penal Code. The sum of money involved was $883.34. Nothing was recovered from the appellant.

On the same day he was sentenced to imprisonment for 12 months for the offence of burglary and larceny in Criminal Case No. 370/96 to be served consecutive to this sentence. His suspended sentence of 18 months' imprisonment was also activated making a total of 3 1/2 years' imprisonment.

The appellant appeals against sentence only. He says that it is harsh and excessive. He is married with 2 children. Although he stated in his grounds of appeal that he is a first offender, he admits that he has two previous convictions but that the sentences were suspended.

Whilst conceding that the proper procedure was not followed by the learned Magistrate whtivating the suspended sent sentence, Mr. Bhindi said that the Court may either set aside the activation or remit the case to the Magistrate's Court for a proper consideration of the matter. Mr. Bhindi further submits that there is insufficient ground for the Court to reduce the sentence in this case.

The appellant has committed a very serious offence and the law provides a severe sentenr it. The appellant was on s on suspended sentence at the time of the commission of the present offence. He was given a chance by not being sent to prison immediately but he did not take any heed of that.

After taking into account the mitigating factors I find the sentence of 12 months' imprisonment imposed on the appelappellant is neither harsh or excessive nor wrong in principle, if anything, the learned Magistrate erred on the side of leniency.

As for the activation of the suspended sentence of 18 months, the State ightly conceded that it cant cannot stand particularly because as required under section 30(1) of the Penal Code the appellant has not been asked by the learned Magistrate to show cause as to why it should not be activated. There are a number of authorities on the procedure to be adopted when activating a suspended sentence, such as LEVI NASAUMALUMU v THE STATE (Crim. App. 56/87); ABDUL KUTTY v THE STATE (Lab. Crim. App. 33/94) and ASHOK KUMAR v THE STATE (Lab. Crim. App. 8/95).

The tendency een on the part of some Magistrates to overlook this procedure. There is need for full comp compliance with the provisions of section 30(1) of the Penal Code as it is mandatory.

In the outcome I set aside the activation of the sentence of 18 months' imprisonmentit is quashed; but the sent sentence of twelve months' imprisonment for the present offence is not disturbed and it stands.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> To that ex and for those reasons, this appeal is allowed.

D. Pathik
Judge

At Suva
23 December 199an>

Haa0072j.96s

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