Rokomaraivalu v State [2008] FJHC 107; HAA022J.2008 (20 May 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

(Nasinu Magistrate’s Court Crim. Case No.: 531 of 2006)
CRIMINAL APPEAL NO.: HAA 22 OF 2008

BETWEEN:

LEONE ROKOMARAIVALU
Appellant

AND:

THE STATE
Respondent

Ms N. Tikoisuva for Respondent
In Person - the Appellant

Date of Hearing: 25th April 2008
Date of Judgment: 20th May 2008

JUDGMENT

The Appellant was charged with burglary and larceny in a dwelling house. The date of the offences was the 22nd of May 2006. Both offences arose out of the same incident.

The Appellant initially denied both charges. The trial commenced on the 13th of October and the Appellant changed his plea after the close of the prosecution case. The facts were that there was a break in at the house of Yasin Ali in Narere on the 22nd of May 2006. When the complainant woke up he found louver blades missing from his kitchen window. The burglar left footprint marks on the kitchen sink. The police investigated. The Appellant admitted breaking in and stealing a wallet containing $17.00 cash.

The Appellant admitted the facts and was convicted. He had a number of previous convictions. His record included a previous conviction for larceny (2212/04) on the 1st of March 2005, one for housebreaking, entering and larceny of the same date (22/3/04) and one for larceny on the 3rd of November 2005 (969/05).

For Case No.: 2212/04 he was given a 2-year term suspended for 2 years.

In mitigation the Appellant expressed remorse, said he was drunk and said he had a wife with one child.

Sentence was delivered on the 15th of November 2006. The learned Magistrate correctly stated the tariff as being between 1 and 4 years. After taking into account all aggravating and mitigating circumstances he sentenced the Appellant to two years imprisonment on Count 1 and two years on Count 2 to be served concurrently. He then said that in March 2005 the Appellant had been convicted on an offence of larceny and sentenced to two years imprisonment suspended for two years. The operational period ended on 1st March 2007. He then asked the Appellant to show cause why the suspended sentence should not be activated.

The Appellant took the oath and said that if the suspended sentence was activated, he would be serving a term which was unfairly long. The learned Magistrate then activated six months of the suspended term to be served consecutive to the two year imposed for the substantive offences. In effect he is serving a sentence of two years and six months imprisonment.

The Appellant’s only complaint is against the part – activation of his suspended sentence. He says that the suspended sentence was quashed in 2005 and that was nothing to activate. The State concedes this. State counsel said that the suspended sentence was quashed on appeal by the High Court.

In Criminal Appeal HAA 036 of 2005S, the Appellant appealed against a sentence of three years imprisonment imposed for one count of housebreaking, entering and larceny. I allowed his appeal against sentence and reduced the sentence to six months imprisonment. However I am unable to locate any appeal from Criminal Case 2212/04 in which the suspended sentence was imposed. The three year term imposed in Criminal Appeal 036/2005S did not include the activation of the suspended sentence in 2212/04. The Appellant claimed in his submissions to the court, that it did so include such activation, but that was not reflected in the learned Magistrate’s sentencing remarks. The two year term suspended for two years therefore remained in operation until March 2007.

The Appellant on the 22nd of May 2006 offended during the operational period of his suspended sentence. Therefore the learned Magistrate did not err when he activated part of it.

This appeal is therefore dismissed.

[Nazhat Shameem]
JUDGE

At Suva
20th May 2008