Kumar v The State [1995] FJHC 8; Haa0008d.95b (11 May 1995)

Fiji Islands - Ashok Kumar v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

APPELLATE JURISDICTION

LABASA CRIMINAL APPEAL NO. HAA0F 1995

BETWEEN

ASHOK KUMAR

Appellant

STATE

Respondent

Counsel: Appelln person

Miss Rice for Respondent

Hearing: 11th May 1995

Decision: 11th May 1995

ORAL DECISION OF PAIN J.

This is an appeal against sentence.

On the 9th May 1994 the Appellant was convicted in the Lautoka Magistrates Coura charge of Larceny from a om a Dwelling. He was sentenced to 12 months imprisonment suspended for l8 months.

On the 13th January 1995 he pleaded guilty in the Labasa Magistrates Court to a further charge of Larceny from a Dwelling. The sentencing remarks of the Magistrate contain nothing more than the imposition of the sentence. The record states:

"In the circumstances I activate the one year's suspended sentence with immediate effect. As regards this offence, the accused is sentenced to one year's imprisonment. This sentence to be consecutive to the sentence activated i.e. 2 years in all."

The acton of a suspended sentence is something that must be done with care and in accordance with with certain principles. Basically these are as follows:

1. & &nsp; The Court must determine mine the appropriate sentence for the subsequent offence.

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2. &nbbsp;& The Thrt shoulshould then then consider activation of the suspended sentence imposed on a previous offence./p>

3. &nnbsp; nbsp; Noy the suhe subsequesequent offence would warrant an immediate custodial sentence for the original suspended sentence to be activated.

4. &nnbsp; nbsp; Ins of Secf Section 3ion 30 of the Penal Code the suspended sentence should be activated unless it would be unjust to do so. The principal reason for not activating a suspended sentence is the relative triviality of the subsequent offence.

5. & p; &nsp;&nbssp; ssp; If the suspended sentenentence is activated it should normally be ordered to run consecutively to the new immediate sentence impon theher oe. The ordering of the two sentences toes to run run concurrently should only be done in e in exceptional circumstances.

6. &nnsp;& Tsp;coue must then then consider the overall or aggregate sentence to see whether it is just and appropriate for the total criminality represented bh off. If otal cessien thm of the the conseconsecutivcutive suse suspendepended send sentence should be reduced.

From these procedures two further principrise.

(a) &nnbsp; &nsp; Beaore pesusd sdetence is e is activated, the Defendant should be given the opportunity to show cause why this should not be done. (See Abdul Kutty v State Ceal Nof 19 the High of Fiji at Labasa). pan> <

(b) & The Court should obtd o pain particulars of the offence for which the suspended sentence was imposed. This is necessary to gauethertotalence impos appate for the overall criminality involved lved in thin the twoe two offe offences.nces.

In this case the procedures were not followed. The Appellant was not given any opportunity to show cause why the suspended sentence should not be activated. The Magistrate had no information regarding the earlier offence to enable him to determine the overall criminality involved.

In Abdul Kutty v State the activation of the suspended sentence was set aside becaue proper procedures were nore not followed. This issue has not been fully argued on this appeal. However there is nothing to suggest that the case was wrongly decided or distinguishable. In these circumstances I ought to follow it and set aside the activation of the suspended sentence in this case.

That leaves the appeal against the sentence of 12 months imprisonment imposed for the furoffence.

The offence of Larceny from a Dwelling is a serious matter under the Penal Code. A substantial maximum penalty is prescribed. This case involved a breach of trust as the Appellant was living in the same house in which the complainant was a guest. Property of a substantial value was taken. The offence was committed only seven months after a suspended sentence had been imposed upon the Appellant for a similar offence. It is in the Appellant's favour that he pleaded guilty at the first opportunity and all the property was recovered. Nevertheless this offence committed by this offender justifies an immediate prison sentence. The term of 12 months imprisonment imposed by the Magistrate is quite a severe term but it is within the range appropriate for this offence committed by a person with a recent previous conviction for the same offence. It is not manifestly excessive and the appeal against its imposition cannot succeed.

Accordingly I order as follows:

1. &nsp; & &nbbsp; The oThe order oder of the Magistrates Court at Labasa on the 13th January 1995 activating the suspended 12 months prison sentence imposed in the Lautoka Magistrates Cou the ay 19 quashed.

2. ;&nbssp; &nsp;&nbbsp; bsp; The appeal against thet the sentence of 12 months imprisonment imposed in the Labasa Magistrates Court on the 13th January 1995 spect char Larceny from a Dwelling on the 13th Noth Novembevember 1994 is dismissed.

JUSTICE PAIN

Haa0008d.95b