Kumar v The State [1998] FJHC 148; Haa0047d.98b (5 November 1998)

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

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 0047 OF 1998

BETW/p>:

AMIT KUMAR
S/O MAHEN KUMAR
Appellant

AND:

THE
Respondent

Ms. A. Driu for the Respondspondent.

REASONS FOR DECISION

On the 9th of July 1998 the appellant and a co-accused appeared before the Savusavu Magistrate Court charged with two (2) counts of Breaking Entering and Larceny. They both pleaded 'guilty' to the charges and upon their conviction were sentenced as follows:

On Count 1: 9 months imprisonment suspended for 2 years; and

On Count 2: 15 months imprisonment

The appellant now appeals against his sentence which he claims are harsh and excessive (Count 2) and wrong in principle (Count 1).

In this latter regard there is not the slightest doubt in my mind that the trial magistrate erred in principle in imposing a suspended sentence of imprisonment together with an immediate sentence of imprisonment.

In R v Sapiano (1968) 52 Cr. App. R 674 the English Court of Appeal (Criminal Division) held:

"It is not proper to pass a suspended sentence to be consecutive to an effective sentence as the main object of a suspended sentence is to avoid sending the offender to prison, and, in any event, the procedure would not be workable"

As for the sentence of 15 months imprisonment on Count 2, the appellant states that he is barely 18 years of age (DOB: 13/6/80) and although, not a first offender, nevertheless, this was his first experience of prison life. He professes to have learnt from his short experience, that 'life is difficult in prison' and he promises not to re-offend if the Court shows him leniency.

Having considered the appellant's unfortunate family background of a broken home and, more especially, his youth and the fact that he assisted the police in the recovery of some of the stolen items, I was satisfied that for a young offender entering prison for the first time the sentence of 15 months imprisonment erred on the side of harshness.

The appeal against the sentences was accordingly allowed and the sentences were quashed and in substitution therefor a sentence of 9 months' imprisonment was imposed in respect of each count with both sentences ordered to be served concurrently.

Furthermore and despite there being no appeal filed by the appellant's co-accused, in the exercise of the Court's revisionary jurisdiction and with a view to avoiding any unjustifiable disparity in the treatment of joint offenders, the sentences imposed on the appellant's co-accused, namely, James Cox were similarly quashed and substituted.

D.V. FATIAKI
JUDGE

At Suva,
5th November, 1998.

HAA0047D.98B