Baleinaivalu v The State [2003] FJHC 139; HAA0029J.2003S (3 October 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NOS: HAA0029 OF 2003S
HAA0046 of 2003S
HAA0047 of 2003S

Between:

MELI BALEINAIVALU
Appellant

And:

THE STATE
Respondent

Counsel: Appellant in Person
Ms L. Chandra for State

Hearing: 26th September 2003
Judgment: 3rd October 2003

JUDGMENT

This is an appeal against sentence. The Appellant was charged with the following offence on HAA0029 of 2003S:

Statement of Offence

HOUSE BREAKING ENTERING AND LARCENY: Contrary to Section 300(a) of the Penal Code, Cap. 17.

Particulars of Offence

MELI BALEINAIVALU, on the 17th day of March 2003 at Wailai Road, Nakasi, Nasinu in the Central Division, broke and entered the dwelling house of SAKILA PRASAD d/o RAM SINGH and stole from therein one (1) national brand radio valued at $100.00, one (1) cordless phone valued at $200.00, one (1) alarm clock valued at $7.00 and one (1) perfume valued $10.00, to the total value of $317.00, the property of the said SAKILA PRASAD d/o RAM SINGH.

He pleaded guilty. The facts were that on the 17th of March 2003 at 8.15pm, the complainant was alone at home when a neighbour telephoned her and told her that someone was breaking into her bedroom window. She went to check and saw the Appellant inside her bedroom. He fled with the items specified in the charge. He was later apprehended and interviewed under caution. He confessed, and was charged. The items were never recovered.

The Appellant admitted these facts and 7 previous convictions. Suspended sentences had been imposed in 2002 for four of these convictions. On the 15th of November 2002 he was given a 2 year term suspended for 3 years for a house breaking offence. On the same day, he was given another suspended sentence of 6 months suspended for 3 years, apparently to run concurrently with the other sentence. On the 4th of December 2002, he was given another suspended term of 18 months suspended for 3 years, for carrying an offensive weapon, and on the same day a 6 month term suspended for 3 years for escaping from lawful custody.

In his sentencing remarks, the learned Magistrate sentenced the Appellant to 1 years imprisonment. Having called for the 2002 files, the learned Magistrate then activated the suspended sentences (a total of 3 years and 6 months). In total the Appellant is to serve 4 years and 6 months imprisonment.

The Appellant now submits that the sentence is harsh and excessive. He says that he is only 24 years old, he pleaded guilty and that he is a farmer.

State counsel in her submissions conceded that the learned Magistrate did not ask the Appellant to show cause why his suspended sentences should not have been activated and said that for that reason the activation may not be correct in law. However she said that the Appellant in this Court had not shown any grounds to justify non-activation, especially because he had offended only two weeks after the suspended sentence had been imposed.

In considering this appeal, it was apparent to me that there were errors in the imposition of the earlier suspended sentence. Firstly, four suspended sentences were imposed within a month. Secondly, the Suva Magistrates’ Court appears to have ordered that the suspended sentences on each file (2580/02 and 2728/02) should run concurrently, the total sentences being 3 years 6 months suspended for 3 years. Because the total sentence exceeded two years imprisonment, (the maximum which can be suspended under section 29 of the Penal Code) I called for the original court files so that I could consider the legality of those sentences. When I received them, I saw that each file was also the subject of an appeal by the Appellant. The grounds of appeal on 46/03 are that the sentence was harsh and excessive and that the learned Magistrate failed to take into account the fact that the Appellant was a first offender. The facts were that the Appellant broke into the house of Olivia Sloan, a Staff Nurse, and stole a laser disc, a video camera, a pair of binoculars, shoes, a bag and assorted clothing to the total value of $2470. He was apprehended with the stolen goods on him, and he gave a false name of the police officer. He later confessed both crimes to the police.

On Appeal 47/03, the Appellant was charged with carrying an offensive weapon, namely a pinch bar, and escaping from lawful custody. He appeals on the ground that his total sentence was excessive in total. The facts were that the Appellant was arrested by a police constable on the 29th of November 2002 for being in possession of the pinch bar. Whilst in the Constable’s custody at the Nabua Police Station, he escaped and was later arrested at the DAV School compound. He admitted both offences.

Section 29(1) allows multiple suspended sentences to be passed. However, the decision as to whether the suspended terms should be served concurrently with each other or consecutively, ought to be left to the activating court (R –v- Blakeway 53 Cr. App. R. 498) and where the aggregate of the suspended sentences exceeds two years, the court should make adjustments so that the total period does not exceed 2 years (R –v- Brown (unreported) April 1, 1977 but referred to in Archbold 2003 5-198).

The sentences passed in Appeals 46 and 47 of 2003 are therefore excessive in total. I vary the sentences passed in 46/03 to 12 months imprisonment suspended for 3 years for the house-breaking offence, and 6 months suspended for 3 years on Count 2. In 47/03, I vary the sentence to 6 months imprisonment on each count. The conviction on Count 1 should not have led to a suspended sentence, because section 29(3)(a) of the Penal Code provides that the offence of carrying an offensive weapon should not lead to a suspended sentence. A term of 6 months imprisonment is imposed on Count 1. On Count 2, a term of 6 months imprisonment is imposed, to be served concurrently with Count 1 and any other sentence currently being served. The total is therefore 18 months suspended for 3 years, on appeal 46/03, and 6 months imprisonment on Appeal 47/03.

In respect of the activation of the suspended sentence, the learned Magistrate’s decision was quite understandable. The Appellant displayed no intention to reform himself, or to respect the terms of the suspended sentences. Section 30(1) of the Penal Code provides:

“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:

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

(b) it may order that the sentence shall take effect with the substitution of a lesser term for the original term;

(c) 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

(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.”

Section 30 does not specifically require the activating court to hear the accused before activating the suspended sentence. However in Viliame Matai –v- The State [1993] 39 FLR 268, Pathik J, adopting the views of Fatiaki J in Levi Nasaumalumu –v- The State Crim. App. No. HAA0056 of 1987, referred to the court’s duty to consider the offender’s case and make a decision under section 30(1)(d) of the Penal Code. Pathik J said:

“The court record does not reveal whether or not the learned trial magistrate had applied his mind to this proviso and I cannot see how if the trial magistrate had applied his mind to the provision then the accused would not have been called upon and heard or that the activated sentence would remain unaltered.

State counsel in response to the Court’s expression of concern stated that it was not mandatory for a court activating a suspended sentence to ask an accused person to show cause why it should not. Counsel argued that the requirement was not expressly contained in section 30 and it was only a practice.

If it is only a practice then it is one that this Court commends to all Magistrates and should be adopted in all future cases when Magistrates are considering the activation of a suspended sentence of imprisonment.

I am satisfied that the proviso in paragraph (d) together with the mandatory requirement in subsection (1) that the court shall consider his case ......... (my underlining) gives rise to a need to hear the accused in the matter.”

In that case the activated suspended sentence was quashed. For the same reasons, the activation of the suspended sentence in this case must be quashed. However having heard from the Appellant at length during the hearing of this appeal, I see no reason why the question of activation should not be properly considered by the Magistrates’ Court. A decision not to activate is usually based on the triviality of the subsequent offence (Fatiaki J in Viliame Gativi –v- The State [1999] 45 FLR 132). The subsequent offence in this case does not appear trivial. However the learned Magistrate needs to hear from the Appellant in a “show cause” procedure, whether there are any other circumstances which might lead to an opinion that it would be unjust to order activation. Further the learned Magistrate must state his/her reasons for that decision, in terms of section 30(1)(d) of the Penal Code.

For these reasons the activation of the suspended sentence is quashed. The sentences on Appeal 46/03 and 47/03 are varied to a total of 18 months suspended for 3 years, on 46/03 and to 6 months imprisonment on 47/03 to be served concurrently with the sentence being served in Appeal 29/03S. The sentence of 12 months imprisonment for the substantive offence in 29/03 remains. The case is remitted to the learned Magistrate to consider activation afresh.

Nazhat Shameem
JUDGE

At Suva
3rd October 2003