IN THE HIGH COURT OF FIJI
At Labasa
Appellate Jurisdiction

CRIMINAL APPEAL NO. 7 OF 1990

Between:

MACIU VURAI
Appellant

v.

STATE
Respondent

Appellant in Person
Mr. R. Perera for the Respondent

JUDGMENT

The appellant was convicted by the Magistrate Court, Labasa on the 5th of March, 1990 after he pleaded guilty to stealing a child's bicycle valued at $60. Upon his conviction the appellant was sentenced to a consecutive term of 6 months imprisonment.

At the time the appellant was serving a sentence of 3 1/2 years imprisonment which together with the consecutive term made a total of 4 years imprisonment.

The appellant appeals against the sentence of 6 months imprisonment and in particular he asks that it be made concurrent. He urges in support his plea of guilty, the recovery of the bicycle and cooperation with the police.

Having carefully considered the circumstances of the case and the various mitigating factors urged afresh by the appellant I cannot accept that the learned trial magistrate erred in anyway in imposing a consecutive sentence. Nor is the length of the sentence harsh or excessive. The appeal is dismissed.

However that is not the end of the matter as it became obvious in the course of hearing the appellant's appeal that what he was more aggrieved at was the activation in full of a suspended sentence of 2 1/2 years imprisonment imposed in the Rakiraki Magistrate Court in June, 1987.

In this complaint I am satisfied the appellant is on stronger ground in spite of learned State Counsel's observation that the appellant has treated the court's past leniency with contempt.

It will be noted from an examination of the appellant's record of previous convictions that the activated sentence was imposed in June 1987 and although he re-offended on no less than 6 occasions thereafter and for which he received prison sentences from 3 different Magistrate Courts, in none was it considered appropriate to activate the suspended sentence which was then not extant.

Finally on the 22nd of February, 1989 the appellant appeared before the Labasa Magistrate Court for an offence of Damaging Property for which he received a sentence of 18 months imprisonment on top of the activated sentence. By then almost 2 years of the suspended term of 3 years had expired.

This court has pointed out on numerous occasions in the past that the provisions of Section 30 of the Penal Code Cap. 17 are mandatory and although a court considering a suspended sentence may leave it unactivated the occasions when that would occur would be rare.

Needless to say it is "inappropriate" to impose an immediate prison sentence without activating a pre-existing suspended prison term.

Such a course reflects an inconsistent sentencing approach and further endorses the prevalent misconception that courts impose suspended sentences as a "soft option" without serious thought to its enforcement.

The past treatment of this appellant is a clear case in point. He has regularly re-offended over the past 2 years without his suspended sentence being activated. Now that the sentence is being activated and although the appellant has abused the Court's leniency, nevertheless 2/3 rds of the suspended term has expired and some consideration ought to be given to the appellant.

In the circumstances in the exercise of the courts revisional powers the activated sentence of 2 years imprisonment is set aside and instead 12 months of the sentence is activated to be served consecutively with the 6 months imposed in the present case.

The total sentence that the appellant must serve is (18 mths + 12 mths + 6 mths) = 36 mths imprisonment with effect from the 22nd of February, 1989 when the suspended sentence was originally activated.

(D.V. Fatiaki)
JUDGE

At Labasa,
4th May, 1990.
HAA0007J.90B