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Prasad v The State [1996] FJHC 97; Haa0045j.95b (8 February 1996)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 45 OF 1995

Between:

1. JANKI PRASAD s/o Raj Kumar
2. SANTA PRASAD s/o Ram Harak
Appellants

- and -

STATE
Respondent

Mr. A. Kohli for the Appellants
Ms Laisa Laveti for the Respondent

JUDGMENT

The Appellants were after trial convicted and sentenced to imprisonment for 18 months on 20 September 1995 at Magistrate's Court at Labasa by the Resident Magistrate Mosese Fernando Esquire for larceny of a cane fastening key valued at $192 contrary to section 259 and 262 of the Penal Code.

This is an appeal by the appellants against severity of sentence.

I have considered the arguments advanced by Mr. Kohli.

The learned Counsel for the State opposed the Appeal stating, inter alia, that the sentence is appropriate particularly bearing in mind that the article in question is valuable in the cane cutting area. She said that both had previous convictions and that the Magistrate has taken into account the mitigating factors before sentencing.

The record shows that at the time of sentencing all that the Magistrate said was that he is sentencing them to 18 months imprisonment and that he is activating the first appellant's suspended sentence. He does not say what factors have been taken into account in imposing the sentence. It may be that he is a busy Magistrate, but that is no reason for taking short cuts and not performing his professional duties in accordance with the law. It is important that brief reasons are given for sentences passed for they will assist the appellate court when it comes to consider a case on Appeal.

Also, when persons are jointly charged each accused's case should be considered separately when sentencing. The mitigating factors should be considered separately and the part played by each in the commission of the offence.

I have before me particulars relating to each appellant. Both have many previous convictions and that does not speak in their favour. They should have learnt their lesson by now. They should blame themselves for their families' sufferings. A deterrent sentence was definitely warranted for to detect such an offence is difficult. The farming community has to be protected from such thefts.

With those observations and after considering Mr. Kohli's submissions I find that the sentence is slightly on the high side. The sentence is therefore in the case of each appellant quashed and substituted by a sentence of 15 months and 12 months imprisonment respectively on the first and second accused.

Before I conclude, there is one very unsatisfactory feature in this case and that is that before activating a suspended sentence the Magistrate should call on the accused to show cause why the sentence should not be activated. This Magistrate had been reminded of the procedure to be followed in a number of cases on appeal in this Court but he has ignored the judgments of this Court which failure he ought to explain. It would do him well to look at some of those cases which are : VILIAME MATAI and the STATE (Labasa Crim Appeal 23/93 - 24.9.93 Pathik Acting Judge), ABDUL KUTTY s/o Suleman Kutty and STATE (Labasa Crim App. 33/94 - 10.2.95 Pathik J), SAIRUSI VESILOMA and STATE (Labasa Crim. App. No. 27/95 - TUIVAGA C.J. 14.9.95).

There is one other aspect of this case which is contrary to proper practice. Here the Magistrate dealt with the activation of suspended sentence first before passing sentence for the present offence. The proper practice should be as follows as stated in the headnote to R v ITHELL (1959) 2 AER P. 449:-

"The proper approach, where a fresh offence has been committed during the period of the suspension of an earlier sentence and the accused is brought before the court, is that the court should first sentence him in respect of the fresh offence by punishment appropriate to that offence, and thereafter address itself to the question of the suspended sentence. Furthermore, unless there are some quite exceptional circumstances, the suspended sentence should be ordered to run consecutively to the sentence given for the current offence".

The learned State counsel concedes that because the proper procedure has not been followed the activation of the suspended sentence of six months ought not to stand.

The activation of the suspended sentence of 6 months on the first accused is therefore quashed.

For the above reasons the appellants' appeals are allowed in that the sentence of 18 months imprisonment on them is quashed and instead each appellant is sentenced to 15 months and 12 months respectively and the activation of suspended sentence against the first appellant is set aside and this appellant will therefore serve only 15 months.

D. Pathik
Judge

At Labasa
8 February 1996

HAA0045J.95B