Williams v The State [1989] FJHC 15; HAA0044j.1989s (8 December 1989)

IN THE HIGH COURT OF FIJI
AT SUVA
Appellate Jurisdiction

CRIMINAL APPEAL NO. 44 OF 1989

Between:

HENRY WILLIAMS
Appellant

and

STATE
Respondent

Appellant in Person
Mr. S. Senaratne for the Respondent

JUDGMENT

The appellant was convicted by the Suva Magistrates Court on the 2nd of June 1988 after he pleaded guilty to an offence of Shop Breaking Entering and Larceny. Upon his conviction the appellant was sentenced to 18 months imprisonment.

Thereafter the learned trial magistrate activated in full a suspended sentence of 21 months imprisonment (hereafter the 'activated sentence') making a total sentence of 39 months imprisonment.

The appellant now appeals against the harshness of the total sentence and in particular against the activated sentence of which he has already served 4 months.

The activated sentence was imposed by the Suva Magistrate Court on the 24th of September 1986 when the appellant was convicted on 2 counts of Larceny by Servant; 1 count of Forgery; 2 counts of Uttering a Forged Document and 2 counts of Receiving Money on a Forged Document. The total amount involved according to the appellant was $300.

In respect of each count the accused was sentenced to consecutive terms of 3 months imprisonment making an aggregate of 21 months imprisonment. The sentence was then suspended for 3 years and therefore was due to expire on the 24th of September 1989.

The appellant if I may say so was treated somewhat lightly on that last occasion especially in the light of his record of previous convictions and the sentences that had been imposed for his past transgressions.

He managed to stay out of trouble for 16 months (less than half the period of suspension) before he committed the present offence.

The learned trial magistrate in dealing with the activated sentence is recorded to have very properly asked the appellant to show cause why the suspended sentence should not be activated and the appellant is recorded as having said he thought the period of suspension was for 2 years.

Needless to say as learned State Counsel correctly pointed out, even if the period of suspension was 2 years as mistakenly claimed by the appellant, nevertheless, it would still have been operative at the time that he committed this most recent offence.

Nevertheless the appellant submitted that the learned trial magistrate should have extended the period of suspension instead of activating the suspended sentence or alternatively, ordered that it be served concurrently with the sentence of 18 months imposed for the most recent offence.

I accept that both these courses were legally available to the learned trial magistrate in this instance. I also accept that they are within the discretion of the magistrate whether to utilise them or not.

Furthermore I note that by the terms of Section 30(1)(d) of the Penal Code Cap. 17 the learned trial magistrate was required to activate the suspended sentence in full; as occurred in this instance, "........ unless the court is of the 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........"

In this latter regard the fact outlined by the prosecution is significant and merits repeating. Briefly they were that the appellant obtained possession of a spare key to his employer's office which he used to gain entry into the office where he stole $1,900 cash.

In doing so the accused might just as easily have been charged with an offence of Larceny by Servant which would make this most recent offence identical in form to that for which he had been given a suspended sentence. On this score the appellant deserves no leniency and the suspended sentence ought to remain unaltered.

In arguing this appeal the appellant says that he is going on 36 years of age and although unmarried he supports his mother; a handicapped sister and her 2 school children. He says that he has come to realise the error of his past life and seeks an opportunity to reform.

In leaving the original term of 21 months unaltered the learned trial magistrate appears to have ignored the fact that the appellant had succeeded in remaining out of trouble for almost half the period of suspension and although this "omission" on the part of the learned magistrate does not amount to a misdirection in the exercise of his discretion in the matter, nevertheless this court is able to show the appellant some leniency.

Accordingly although the learned magistrate's activation of the suspended sentence is upheld and remains consecutive, the 21 months is hereby reduced to 12 months with effect from the date when the appellant began to serve the activated sentence some 4 or 5 months ago.

The practical effect of this reduction is that the appellant (assuming he is entitled to full remission) will only have to serve another 3 months imprisonment.

(D.V. Fatiaki)
JUDGE

Suva,
8th December, 1989.

HAA0044J.89S