IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 045 of 2008

Between:

SAMUELA KOPETA
Appellant

And:

THE STATE
Respondent

Hearing: 29th May 2008
Judgment: 2nd June 2008

Counsel: Appellant in person
Ms A. Tuiketei for State

JUDGMENT

This is the Appellant’s appeal against a total sentence of 21 months for the offence of willful damage. His appeal grounds are that the learned magistrate failed to take into account his prompt plea of guilty and his co-operation with the police.

He was charged, on the 28th of December 2006 with the willful and unlawful damage of the glass door of Yuh Yow Fisheries Office, which was valued at $160.00. He appeared before the Suva Magistrates’ Court on the 26th of March 2007 and pleaded guilty.

The facts were that on the 19th of November 2006 the security officer at Fiji Fish Ltd. saw the Appellant enter the compound, walk up the stairs to Yuh Yow Fisheries Ltd. office. 5 minutes later he heard the sound of glass breaking. He and another security officer went to check what the noise was and saw the Appellant standing near the door with the glass broken. He was drunk. The security officers escorted the Appellant to the Lami Police Station. He was charged with damaging property and criminal trespass.

These facts were admitted. The Appellant has 10 previous convictions, but until the commission of this offence, had never served a term of imprisonment. The offences were larceny, burglary, trespass and office-breaking entering and larceny. He has never committed a crime of violence but clearly he has a high nuisance value in the offences he has committed. On the 3rd of July 2006 he was given an 18 month term suspended for 2 years for the offence of office-breaking entering and larceny.

He is 23 years old, married with one child. He worked as a casual labourer and promised not to reoffend. The record reads, somewhat cryptically "Special Reason. Accused says he was angry when he committed this offence."

Sentence was delivered on the 19th of April 2007. The learned Magistrate took into account the plea of guilty and mitigation. He said that the Appellant had been drunk when he offended, which aggravated the circumstances. He committed the offence 4 months into an 18 month suspended sentence, suspended for 2 years. The learned Magistrate sentenced the Appellant to 3 months imprisonment for the offence of damaging property, and activated the 18 months suspended sentence in full. The Appellant now serves a term of 21 months imprisonment. He has already served 13 months of it, and with remission for good conduct, is now due for release.

In principle the circumstances called for the activation of the suspended sentence. The Appellant has continued to re-offend despite the leniency shown to him by the courts since March 2000, when he began to commit criminal offences. He was then only 15 years old. Sadly he has repaid the leniency shown to him by continually offending. In principle, he richly deserved the activation of his sentence.

In law however, the learned Magistrate could only activate the suspended sentence after allowing the Appellant to give evidence as to why it should not be activated. Section 30 of the Penal Code states that where an offender has re-offended during the operational period the court "shall consider his case and deal with him by one of the following methods" –

1.	order the suspended sentence to be activated in full;

2.	order that it be activated in part;

3.	lengthen the period of suspension by up to 3 years from the date of variation; or

4.	"it may make any order with respect to the suspended sentence, and a court shall make an order under paragraph (a) unless the court is of opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was passed, including the facts of the subsequent offence and, where it is of that opinion, the court shall state its reasons."

In deciding which of these options to take, the magistrate or judge has a duty to give an accused person an opportunity to show cause on oath why the sentence should not be activated. Fatiaki J in Levi Nasaumalumu v. State HAA 56/87 set aside such an activation where the court record did not disclose that the appellant had been given such an opportunity. Similarly, in Rajiv Kumar v. State [1993] Pathik J took the same course, saying that although section 30 did not specify such a requirement, it was nevertheless mandatory for the accused to be asked to "show cause" on oath.

The court record in this appeal does show that the Appellant was asked to "show cause", and I accept that this mandatory requirement was followed. However the court record is not informative about the nature of the procedure, and the normal way of recording evidence on oath is not reflected in the record. For the avoidance of doubt in future cases, this procedure of recording sworn evidence should be adopted so that appellate courts are not uncertain as to whether the "show cause" procedure was adopted.

In this case I accept that it was and that the learned Magistrate considered that it would not be unjust to order activation. Certainly, as I have said, the Appellant’s conduct in offending so quickly after the imposition of the suspended sentence, leads me to conclude that the activation was correct in principle. Furthermore the imposition of a 3 month term for damaging property was also correct.

For these reasons the appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
2nd June 2008