“Where an offender is convicted ooffence punishable with imprisonment committed duringuring 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:
(a) p; &bsp; &nbbp;&nnbsp;
(c); &nsp; &nbbsp;
(d) & &nsp; &nbssp; it may make any ordy order with respect to the suspended sentence, and a court shall mn ordder paph (less ourt opinion tt wou unju
do so in v in view oiew of allf all the the circucircumstanmstances wces which hich have 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.” (My
underlining)
In Haroon Khan -v- The State (supra), Fatiakiund that the conviction for the subsequent offence, and the activation of the suspended send sentence took place
outside the operational period. His Lordship said at page 6:
“Section 30(1) however, makes it clear beyond any doubt that it is the subsequent conviction of the offender for an imprisonable offence
and not its commission alone, that is the critical pre-requisite in the exercise of the court’s power to activate a suspended sentence, so
that, in the absence of a conviction such as might occur under section 44 of the Penal Code, activation of a suspended sentence would not be possible.”
His Lordship said that a contrary view would result in grave injustice to the offender because it would serve to suspend the operational
period indefinitely.
Section 30 of the Penal Code, is identical to section 23(1) of owers of Criminal Courts Act 1973 (U.K.). That section also provides that where an offenderender
is “convicted of an offence committed during the operational period of a suspended sentence”, the suspended term may be activated.
Dr D.A. Thomas in his “Principles of Sentencing” 2nd Ed. at page 248, says this of the power to activate: “The power to deal with the offender inect of a suspended sentence arises where he is ‘convicted oted of an offence punishable with
imprisonment committed during the operational period of a suspended sentence.’ Where the offender is convicted during the operational
period of an offence committed before the imposition of the suspended sentence, there is no power to enforce sentence, but the sentence may be enforced where the offender is convicted after the expiration of the operational period of an offence committed
during the operational period.” (My emphasis)
Archbold (2000 Edition at 5-203) agrees. It statesan>
“The power to activate a suspended nce arises when the offender is convicted of an offence pune punishable with imprisonment committed
in Great Britain during the operational period of the sentence. It is not necessary that the conviction take place during the operational period, but there must be a conviction.” (my emphasis)
This interpretation would appear to be consistent with the ethos of the suspended sentence, which is to ensure good behaviour for
the duration of the operational period. The question of the time of the conviction for the subsequent offence is therefore irrelevant.
The most common use of the suspended sentence, is for the sentencing of an offender of previous good character who has committed
a serious offence, under circumstances of substantial mitigation. It may also be imposed where unusual circumstances justify a departure
from a normal sentence. (R -v- Okinikan (1992) 14 Cr. App. R(s) 453.)
In the United Kingdom, the Powers of Criminal Courts Act 1973 has been amended by the Criminal Justice Act 1991, which limits the
usehe suspended sentence to cato cases where a custodial term would normally be appropriate, and where there are exceptional circumstances
of the case.
However, the principles of activation of the suspended sentremain the same.
In the looseleaf “Current Sentencing Principles” (Part A13), Dr Thomas says:
“It is notssary for the conviction to occur during the operational period, but the court activating ting the sentence may make some
allowance where the latter offence is committed close to the expiration of the operational period.”
In R -v- Carr [2009] EWCA Crim 1669; (1979) 1 Cr. App. R(s) 53, the appellant was sentenced to 12 months imprisonment, nded for two years, for offr offences of dishonesty. About 22 months later
he committed several offences of handling stolen goods, and was sentenced to two years immediate imprisonment, with full activation
of the suspended sentence. The latter conviction was entered after the end of the operational period. The Court of Criminal Appeal held (per Wien J) that because a good deal of the operational period
had expired when the offender had committed the latter offences, the activated suspended sentence should be ordered to run concurrently
rather than consecutively.
In R -v- Fitton (1989) 11 Cr. App. R(s) 350 Otton J said:
“Parliament intended that a suspended sentence should normally have effect that if a further offence is committed during the operational
period, then the whole of the suspended term will be activated. The reason is obvious: the longer the period has been in operation,
the more likely that the resolution of a person who is minded to revert to previous criminal activity may weaken and he must expect
the full sentence to come into effect if he commits further crime.”
In R -v- Taylor (1975) Crim. L.R. 113 the appellant was convicted of two coof cruelty to his infant son, and was sentenced to 18 monthmonths imprisonment, and 18 months
imprisonment to be served consecutively for offences of burglary for which the appellant had been put on probation. The Court of
Criminal Appeal held that the putting into effect of a suspended sentence was not itself a sentence because the sentence was passed
when it was originally imposed. A probation order, by comparison, was made when the offender was subsequently dealt with.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> These cases, are based on the premise that it is the offending that must take place within the operational period, he imposition,
and not the the activation, of the suspended sentence which is the “sentence.” The date of the conviction of the latter offence,
and of the enforcement of the suspended sentence, does not need to fall within the operational period. For these reasons, I respectfully differ from the
decision of Fatiaki J in Haroon Khan -v- The State (supra). I therefore find that the learned Magistrate had the power to activate the Appellant’s suspended sentence, although the
operational period had expired, for the latter offence which was committed within the operational period.
Turning next to the ground that the sentence passed was excessive, I consider that the suspended sentence oe HAA044 of 2001 to be
righ right in principle. The Appellant had one previous conviction for Drunk and Disorderly. The offence was a serious one, but the
circumstances justified the imposition of a suspended sentence.
In respect of File No. HAA045/2001, a sentence of 18 months imprisonment for the offence of Robbery with Violence, wa manifestly excessive,
nor nor wrong in principle. The facts of the case show that the Appellant attacked a 63 year old taxi driver and stole $6.00 from
him. Given the tariff for Robbery with Violence offences, this is not an excessive or unprincipled sentence. Nor is the total term
of 2 years and 6 months imprisonment disproportionate to the offending, on the totality principle.
For these reasons, this appeal is dismissed.
ass=MsoNormoNormal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> Nazhat Shameem
JUDGE
At Suva
10th August 2001
Haa0044j.01s
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