Prasad v The State [1996] FJHC 82; Haa0071j.96s (23 December 1996)

Fiji Islands - Parmendra Prasad v State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 00071 OF br> (Nausori Criminal Case No. 370/96)

BETWEEN:

PARMENDRA PRASAD
s/o Bir Chand
Appellant

AND:

STATE
Respondent

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The Appellant rson
Mr. N. Bhindi with Ms Rachel Olutimayin for the State

JUDGMENT

This is an appeainst sentence on the ground that it is harsh and excessive.

On 23 May 1996 on his own plea the appellant was convicted by the Magte's Court at Nausori for tfor the offence of burglary contrary to section 299(a) and larceny contrary to s.270(a) of the Penal Code involving a total sum of $557.00. All the items have been recovered except cash.

Upon his conviction he was sentenced to 12 monthprisonment to be served consecutive to the sentence of 12 m 12 months imposed on him the same day in the Magistrate's Court at Nausori in Criminal Case No. 363/96. Further, the suspended sentence of 18 months' imprisonment was activated which was ordered to be served consecutive to the above two sentences making a total of 3 1/2 years' imprisonment.

The appellant says that he is a first der but that is not so. He is married with two children.

The learned State Counsel Mr. N. Bhindi, submitted that the sentence is arsh and excessive. The appe appellant was given a chance before to reform himself when the suspended sentence was imposed. He said that the learned Magistrate did take into account his plea of guilty before sentencing him. Mr. Bhindi however concedes that the proper procedure was not followed when the learned Magistrate dealt with the activation of the suspended sentence. He submits that there are two solutions to this problem. Firstly, the Court may set aside the activation; secondly, to remit the case to the Magistrate's Court for a proper consideration of the matter.

I find that as far as the sentence of 12 months' imprisonment is cond it is most appropriate fote for a serious offence of this nature. If anything, it is somewhat lenient.

I therefore find that there imerit on this ground of appeal.

Although not raised as a ground of appeal, the procedure followed by the learned Magistrate in acing the suspended sentence ence failed to comply with the provisions of section 30(1) of the Penal Code in that the appellant was not asked to show cause why the suspended sentence ought not to be activated.

Magistrates have been reminded by this Court about thetice to be adopted when activating a suspended sentence of e of imprisonment but unfortunately they have been overlooked by some of them thus leading to the setting aside of the activation which defeats the whole purpose of passing a suspended sentence.

The Statcedes that there has been an irregularity in the procedure adopted.

The learned Magistrate should have called on the appellant to cause why the suspended sentence imposed on him earlier sher should not be activated. This is a mandatory requirement under s.30(1) of the Penal Code which, in so far as it is relevant, reads as follows:-

"30 - (1) Where an offens convicted of an offence punishable with imprisonment comm committed during the operational period of a suspended sentence and either he was convicted by or before a court having power under the provisions of section 31 to deal with him in respect of the suspended sentence or who subsequently appears or is brought before a court, then, unless the sentence has already taken effect, that court shall consider his case and deal with him by one of the following methods:- (underlining mine)

(a) .....

(b) .....

(c) .....

(d) .....

(2) .....

(3) ....."

Thereafter there are 4 courses open to Court and it 'may' make any of the 4 orders open to it.

Unless section 1) is complied with the whole purpose of suspended sentence is defeated as stated by GOUu>GOUDIE J in KUAR VIJAY BHAN v R 18 F.L.R. 27) when he said:

"If a person is under suspended sentence and commits a subsequent ce, or in breach of a probaprobation order by committing a subsequent offence, and he is not called upon to show cause why he should not be punished for such subsequent offence the whole object of the suspended sentence or probation order is defeated and the powers and authority of the Court brought into contempt. ......"

The fact that the file relating to the previous convi was not available at the time when the learned Magistrate rate was dealing with the case before him, the proper and the most advisable course is for him to adjourn the activation of suspended sentence for another day and call for the file from the Court where he was given the suspended sentence. It is most desirable that the learned Magistrate sees the file himself lest a wrong information comes to him on the telephone resulting in the accused being sentenced unlawfully.

This procedure will not affect him in deawith and sentencing the accused in the case before him for for in any case the learned Magistrate would only be dealing with the activation after he has sentenced the accused with the offence he is charged with and if the suspended sentence is activated then it will be consecutive to the sentence already passed on him. The procedure is succinctly stated in R v ITHELL (1969) 2 AER p. 449 thus:

"The proper approach, where a fresh offence has been committed during the period of the suspension of an earlier sentence and the accused is brought before the court, is that the court should first sentence him in respect of the fresh offence by punishment appropriate to that offence, and thereafter address itself to the question of the suspended sentence. Furthermore, unless there are some quite exceptional circumstances, the suspended sentence should be ordered to run consecutively to the sentence given for the current offence".

For an offence of this nature the sentence passed on the appellant is neither harsh or excessive nor wrong in principle.

For the above reasons, the appeal is allowed to the extent that activation of suspended sentence is set aside and quashed; the sentence of 12 months for present offence is not disturbed and it stands. The appellant will therefore serve this sentence consecutive to the sentence in Cr. Case No. 363/96, that is a total of two years.

D. Pathik
Judge

At Su> 23 December 1996

Haa0071j.96s