Kutty v The State [1995] FJHC 34; Haa0033j.94b (10 February 1995)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: 0033 OF 1994

Between:

ABDUL KUTTY
s/o Suleman Kutty
Appellant

-and-

STATE
Respondent

For Appellant: In Person
For Respondent: Miss Laisa Laveti

JUDGMENT

On 11 November 1994 at Labasa Magistrate's Court the appellant was convicted on his own plea on two counts of burglary contrary to section 299 (a) and Larceny from dwelling-house contrary to section 270 (a) of the Penal Code and sentenced to imprisonment for 9 months and 6 months respectively. He was also sentenced to imprisonment for a further term of three months when his suspended sentence was activated.

He appeals against the sentences on the two counts which he says are harsh and excessive bearing in mind the mitigating factors.

The learned State counsel submits that the sentence is justified. She conceded that the learned Magistrate should have put the accused on oath to show cause why his suspended sentence in Case No. 737/91 and 199/89 should not be activated. The learned Magistrate failed to take this step but proceeded to activate the suspended sentence by imposing a term of three months' imprisonment.

The appellant submits that the main problem that he is facing at present is that his father is also in prison. He is married with two children.

I have considered what the appellant had to say in this appeal. He has a number of previous convictions and one of them is for a similar offence. During the operational period of the suspended sentence be committed the present offences involving the theft of goods valued at hundreds of dollars. The goods were subsequently recovered.

There is no merit whatsoever in this appeal.

However, before I leave this matter I would like to comment on one aspect of the case and that is that in this case the learned Magistrate activated one of the suspended sentences by imposing a sentence of 3 months' imprisonment presumably in Action No. 199/89 which was a case of burglary for which he was sentenced to imprisonment for 3 months suspended for one year on 1st November 1993. In Action No. 737/91, on the same date namely 1st November he was convicted for receiving stolen property and sentenced to imprisonment for 9 months which was suspended for two years (although the record of previous convictions tendered to court says one year, which I found to be wrong on checking the original file).

The procedure adopted by the learned Magistrate in activating the suspended sentences was wrong in law.

The Appellant should have been given the opportunity by the learned trial Magistrate to show cause on oath (underlining mine) as to why his suspended sentences should not be activated. If this is not done the activation of the suspended sentence is likely to be set aside as was done by FATIAKI J in LEVI NASAUMALUMU and THE STATE (Criminal Appeal No. 56/87). Also in VILIAME MATAI and THE STATE (Labasa Criminal Appeal No. 23/93) I set aside the activation of the suspended sentence because of the failure to follow the "show cause on oath" procedure.

In future it will be advisable to take note of the abovementioned cases so that problems do not arise when dealing with activation of suspended sentence.

Furthermore, the error in the length of suspended sentence in the record of previous convictions submitted to court would have been discovered had the learned Magistrate perused the original file which he should have done before dealing with the activation of the suspended sentences.

To conclude, the sentences imposed on the appellant on the two counts of burglary are neither wrong in principle nor manifestly harsh and excessive and the appeal is accordingly dismissed except that the three months' sentence on activation is set aside thereby reducing his total sentence by three months. The appellant will therefore serve a total of 15 months' imprisonment.

D. Pathik
PUISNE JUDGE

At Labasa
10th February, 1995

HAA0033J.94B