Nasowiri v State [2001] FJHC 197; Criminal Appeal 20.2001 (24 May 2001)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 20 OF 2001
(Savusavu Mag. Ct. Cr. Case No. 47 of 2001)

Between:

SAKIUSA NASOWIRI
KAVIRIELI DAUCAKACAKA
Appellants

And

STATE
Respondent

Appellants in person
Mr. J. Rabuku for the State

JUDGMENT

On 2 March 2001 both the appellants were on their own plea of guilty convicted and sentenced to imprisonment for 3 years by the Labasa Magistrate’s Court for the offence of robbery with violence contrary to section 293 (1)(a) of the Penal Code, Cap. 17. The second appellant’s suspended sentence of two years was activated and made concurrent to the current term.

The Particulars of Offence state that the appellants with another:

"on the 23rd day of February, 2001 at Savusavu in the Northern Division, robbed Mr. VERN LAMBERT of 1 gold necklace valued $2,000.00, a canon camera valued $1,000.00. a binoculars valued $2,000.00, a gold wrist watch valued $400.00, a walkman valued $200.00, a blue bag valued $20.00 and cash $320.00, all to the total value of $5,940.00, the properties of the said Mr VERN LAMBERT and immediately before the time of such robbery did use personal violence to the said MR VERN LAMBERT".

Both have appealed against severity of sentence.

The first appellant pleads for reduction of his sentence so that he can look after his farm.

The second appellant says that the sentence is harsh. If the sentence is reduced he will be able to continue his course in automotive engineering at the Fiji Institute of Technology. This offence he says was committed when he was on a break at home from FIT and joined wrong group of boys.

The appeals were vigorously opposed by the learned State Counsel. He said that the robbery was aggravated in degree where a knife was used in stabbing the complainant. He said that both have previous convictions for property offences and the second appellant for a similar offence for which he was given a suspended sentence. Counsel submitted that the sentences are neither harsh nor excessive. He asks that the appeal be dismissed.

The appellants have committed a very serious offence and have used a knife in its commission. The complainant was stabbed with the knife while he was asleep in bed resulting in personal injuries on him. He evidently is an investor in Fiji. This kind of attack on innocent people does a lot of harm to this country.

The appellants deserve no sympathy at all; the sentences passed on them are quite appropriate bearing in mind that a knife was used in the commission of the offence. The second appellant has a previous conviction for a similar offence and he received a suspended sentence of two years.

The manner in which the suspended sentence in case No. 452/99 pertaining to the second appellant was activated is of some concern because the learned Magistrate did so without following the proper procedures in this regard. He was also in error in making it concurrent rather than consecutive.

When a Magistrate is considering activation he should call for the previous file in which the suspended sentence was given. He should then put to the accused that he was convicted and given a suspended sentence and ask him to show cause why it should not be activated. Thereafter he should decide whether to activate or not and follow the provisions of section 30 of the Penal Code which provides:

30. - (1) Where an offender is convicted of an offence punishable with imprisonment 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:-

1. the court may order that the suspended sentence shall take effect with the original term unaltered;
   
2. it may order that the sentence shall take effect with the substitution of a lesser term for the original term;
   

100. it may by order vary the original order made under the provisions of subsection (1) of section 29 by substituting for the period specified therein a period expiring not later than three years from the date of the variation; or
     

4. it may make any order with respect to the suspended sentence, and a court shall make an order under paragraph (a) unless the court is of opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was passed, including the facts of the subsequent, offence and, where it is of that opinion, the court shall state its reasons.
   

(2) Where a court orders that a suspended sentence shall take effect with or without any variation of the original term, the court may order that sentence shall take effect immediately or that the term thereof shall commence on the expiry of another term of imprisonment passed on the offender by that or any other court.

(3) For the purposes of any written law conferring rights of appeal in criminal cases, any order made by a court under the provisions of subsection (1) shall be treated as a sentence passed on the offender by that court for the offence for which the suspended sentenced was passed.

Further in s31(1) it is provided:

"An offender shall be dealt with in respect of a suspended sentence by the Supreme Court or, where the sentence was passed by the Magistrate’s court, by any magistrate’s court where he appears or is brought".

If a Magistrate decides under section 30(1)(a) that the suspended sentence shall take effect with the original term unaltered then that sentence has to be consecutive to the sentence passed on the accused for the present offence and not concurrent as was done in this case.

This is an appropriate time that I draw the attention of Magistrates to my previous judgments on suspended sentences and their activation wherein I set out the procedure to be followed. If these considerations are noted, it might lead to fewer decisions being upset.

As for the activation of suspended sentence of the second appellant I set it aside and remit the case to the learned Magistrate with the direction that the second appellant be summoned before him to show cause why the suspended sentence should not be activated and then for him to deal with the matter in accordance with the law as set out in the said sections 30 and 31 of the Penal Code.

The appeals are dismissed as they are devoid of any merit.

D. Pathik
Judge

At Labasa
24 May 2001