Raibono v The State [2002] FJHC 111; HAA0041J.2002S (15 May 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0041 OF 2002

Between:

KAVENI RAIBONO
Appellant

And:

THE STATE
Respondent

Hearing: 14^th May 2002

Judgment: 15^th May 2002

Counsel: Appellant in Person
Ms A. Prasad for Respondent

JUDGMENT

On 14^th September 2001, the Appellant was convicted, on his guilty plea of the following offence:

Statement of Offence

THEFT CATTLE: Contrary to Section 275 of the Penal Code, Cap. 17.

Particulars of Offence

EMORI KOROIRAVUNI, AMANI TAVITANI, LIVAI ROKOTAKALA and KAVENI RAIBONO between 22/8/2001 and 23/8/2001 at Waidewara, Tailevu in the Central Division, stole two (2) milking cows valued $800.00 the property of JAY SINGH s/o Brij Lot Singh.

He was sentenced to two years imprisonment suspended for two years.

On 1^st November 2001, the Appellant pleaded guilty to the following offence:

Statement of Offence

LARCENY OF CATTLE: Contrary to Section 275 of the Penal Code, Cap. 17.

Particulars of Offence

KAVENI RAIBONO, sometimes in between the 30^th and the 31^st day of October, 2001 at Nabaitavo, Naitasiri, in the Central Division, stole two cows valued at $300.00 each, to the total value of $600.00, the property of RAM JEET s/o Ram Bajan.

He was sentenced to two years imprisonment, and the suspended sentence imposed on 14^th September 2001 was activated in full, to run consecutively to the substantive term of imprisonment. He now appeals against sentence. His grounds of appeal, which I summarise for convenience, are as follows:

1. He was not told of his right to counsel and he was thereby prejudiced;
   
2. The learned Magistrate failed to take into account the fact that the Appellant had paid the complainant $600.00;
   
3. That his six children were suffering because he is in prison;
   
4. That he was not asked to show cause why his suspended sentence should not be activated.
   

The grounds of appeal

It is apparent from the court record that the Appellant was not told of his right to counsel. It is unfortunate that the learned Magistrate ignored section 28(1)(d) of the Constitution, and failed to tell the Appellant of his constitutional right to counsel. As I said in Suren Singh & Others -v- The State Crim. App. No. HAA0019 of 2000 a simple four-step procedure followed by magistrates before the plea is taken, will ensure compliance with the Constitution, and will result in a reduction of appeals to the High Court on the ground of unfair procedure.

There was a breach of section 28 of the Constitution. However, the question is whether the Appellant was thereby prejudiced.

I find on a scrutiny of the court record, that the charge was read and explained to the Appellant, that he understood it, and that his plea of guilty was unequivocal. I also find that the facts outlined by the prosecution were detailed and clear, and disclosed the ingredients of the offence. The Appellant agreed that he was the driver of a two ton carrier, which contained two slaughtered cows which had been stolen from the complainant. In mitigation, he said he committed the offence because he was desperate for money. I do not consider that the Appellant was prejudiced by the learned Magistrate=s failure to comply with section 28 of the Constitution. His first ground of appeal is dismissed.

As to his appeal against sentence, the court record does not show that the learned Magistrate took into account the fact that the money had been given to the complainant. Nor has he referred to the Appellant=s other mitigating circumstances.

However the two year sentence imposed, for an offence with a maximum sentence of fourteen years is not manifestly excessive. This is particularly so because the Appellant was entitled to no leniency on the ground of character. He has seven previous convictions including one for injuring animal, three for larceny and one for Shop Breaking Entering and Larceny.

In principle, a sentencer is required to identify a starting point within the tariff for similar offences, and then to adjust up and down for aggravating and mitigating circumstances. In this way the accused (and the appellate court) can be sure that all relevant matters were taken into account, and that the sentencing process was principled in approach. This then ensures uniformity of approach to sentencing, which ultimately leads to a pattern of sentencing in all the courts which appears to be, and is, fair and transparent.

However, despite the fact that the learned Magistrate did not adopt this procedure in this case, the two year sentence was not wrong in principle in its result.

I now turn to the activation of the suspended sentence. The learned Magistrate=s sentencing remarks were as follows:

AAccused has pleaded guilty to the charge. He was ordered by Tailevu Court on 14/9/01, for committing similar offence, not to re-offend for 2 years. Barely one month after the Court gave him a chance to reform, he again committed similar offence. Accused is sentenced to two years imprisonment. Suspended sentence is activated. To serve consecutively.@

Section 30(1) of the Penal Code provides, inter alia, that:

AWhere 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 the court, then, unless the sentence has already taken effect, the court shall consider his case and deal with him by one of the following methods:

(a) the court may order that the suspended sentence shall take effect with the original term unaltered;

(d) 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.@

Pain J in Saimoni Tucila -v- The State Crim. App. No. HAA0009 of 1996, and Binesh Pillay -v- The State Crim. App. No. 0023 of 1997, explained how the sentencer should approach the activation of a suspended sentence. In Saimoni Tucila he said, at page 4 of his judgment:

A.... there is a statutory obligation on the Magistrate to consider the offender=s case and, in considering whether or not it would be unjust to activate the suspended sentence for its full term, the offender must be given the opportunity to show cause why it would be unjust. The practice approved by this Court, is for the offender to be given the opportunity to show such cause on oath.@ (emphasis in the original)

In that case Pain J quashed the sentence but invited the offender to Ashow cause@ on oath in the High Court. He then proceeded to sentence afresh.

In Binesh Pillay Pain J said, at p.7:

AIn this case the learned Magistrate did not give the Appellant any opportunity to show cause why the activation of the suspended sentence would be unjust. Nor did the learned Magistrate consider the overall term of imprisonment with the consecutive activated sentence to see if it was appropriate for the total criminality represented by all offences.@

In that case the order activating the suspended sentence was quashed.

In the Appellant=s case, the learned Magistrate failed to ask the Appellant to give evidence on oath explaining why his suspended sentence should not be activated. He failed to show, on the court record, that he had considered section 30 of the Penal Code and the circumstances of the Appellant and his case since the suspended sentence had been imposed. Finally, he failed to consider whether the four years imprisonment reflected the totality of the offending. The State concedes that the activation of the suspended sentence was irregular.

For these reasons the activation of the suspended sentence is quashed.

I have considered whether it is appropriate to remit the matter to the Magistrates= Court for a re-hearing of the issue, or whether I should proceed to hear evidence on oath in the High Court and adjust the sentence accordingly.

The Appellant=s sentence was imposed on 1^st November 2001. The record, in breach of the Criminal Procedure Code, was sent to the High Court, six months later on 8^th May 2002. I consider that the Appellant has waited long enough for a determination of his sentence, and I have proceeded to hear his evidence on oath myself.

On oath, he said that his suspended sentence should not be activated because he had not benefited from the subsequent offence, and that since the commission of the first offence, his wife has become pregnant and is looking after their six children. He said that three of his children go to school, and that the subsequent offence was trivial in nature.

He was cross-examined by State Counsel, and he agreed that he had committed the subsequent offence during the operational period of the first suspended sentence and that the nature of the suspended sentence had been explained to him by the Magistrate in September 2001.

In her submissions, State Counsel submitted that the Appellant had not shown cause to prevent the activation in full of the suspended sentence. I agree. The Appellant committed the subsequent offence less than two months after his first conviction for the same type of offence. Although he had paid the complainant $600, after he committed the subsequent offence, the seriousness of the offence of cattle-stealing in a rural community cannot be ignored. The subsequent offence was not trivial and the Appellant richly deserves to have his suspended sentence activated.

However, normally, the activated sentence must run consecutive to the substantive term. This leaves the Appellant with a total of four years imprisonment which appears excessive given the type of offending and the fact that the Appellant has not benefited from it. I therefore adjust the sentence by reducing the total term to three years imprisonment. His appeal against sentence is successful to that extent.

Nazhat Shameem
JUDGE

At Suva
15^th May 2002