State v Singh [2001] FJLawRp 10; [2001] 1 FLR 52 (2 February 2001)

STATE v RITESH AMRIT SINGH

High Court Criminal Appellate Jurisdiction

2 February, 2001

HAA087/00S

Defilement – State's appeal against sentence – Defendant sentenced to 12 months imprisonment on 2 counts of defilement - whether concurrent or consecutive – suggested words to be read by magistrates explaining the effect and meaning of a suspended sentence – whether sentence of imprisonment appropriate - recommendation of probation supervision not exercised by magistrate - probation supervision order made effective - Penal Code s29(4).

The Respondent had pleaded guilty to 2 counts of defilement of a girl under the age of 13 years and was sentenced to 12 months imprisonment on each count. The State appealed its leniency. On appeal, the Court could not determine from the record whether the sentences imposed were concurrent or consecutive. State counsel could not assist. The Court found the magistrate had properly taken into account mitigation and gave reasons for sentence. The Court found the sentence of imprisonment was inappropriate and was excessive rather than lenient, for the then 17 year old, especially where the magistrate had not accepted a recommendation for probation supervision. It made effective the probation order. Having found there was no note in the record of whether the magistrate had explained the effect of a suspended sentence to the Appellant, and whether the Appellant understood it, the Court set out a suggested explanation to be given by a magistrate or Judge on the imposition of a suspended sentence and its meaning and effect.

Held – It is imperative that magistrates should state whether a sentence will be concurrent or consecutive, or there will be confusion later. Magistrates must also give an explanation on what a suspended sentence means, and note that the accused has understood the explanation. If a sentence of imprisonment is appropriate the period should always be assessed first and then a decision made concerning suspension.

Suspended sentences of imprisonment quashed. Probation Order for 12 months made effective immediately.

Obiter dictum - Long delays and a multitude of hearings can indicate loss of control over the case. A magistrate in charge of a case should ensure that adjournments are kept to a minimum and the case concluded within a sensible time period.

case referred in Judgment

Ravuama Matuku v State [1993] HAA 26/93 1 June 1993

Resina Senikuraciri for the Appellant
Mehboob Raza for the Respondent

2 February, 2001

JUDGMENT

Surman, J

Background

1. This matter concerns an Appeal by the State against the sentences imposed by the Magistrate sitting at Suva on 22 August 2000.

2. The Respondent (then aged 20) had earlier pleaded guilty to two Charges of Defilement of a girl under the age of 13 years: the offences being committed in August 1996 and again in August 1997 (when the Appellant was 17 years old).

The Magistrate's Record

3. The Sentences imposed by the Magistrate were 12 months imprisonment on each Charge suspended for 3 years. Unfortunately the Magistrate does not make it clear (as he should have done) whether these two periods of 12 months were to run consecutively to one another, or concurrently with each other, it is imperative that the Magistrate should state which, or there will be confusion later (as now) when an Appeal arises, or if there is a requirement to activate the sentence(s).

4. Counsel has been unable to help me on this point. So for the purpose of this Appeal I will assume that the sentences are concurrent (overall total 12 months) and then suspended. I like to think that if the Magistrate had given the mandatory explanation to the Defendant on the meaning of the suspended Sentences he would have noticed his omission to state which form the Prison Sentences were to take.

Chronology of the Magistrate's Hearing

5. I am concerned in this case, as I have been on several other cases from the Magistrates' Courts that have come before me recently, about the chronology of the hearings. These were serious Charges, but the hearings took in excess of 12 months to complete. The initial hearing was on 17 June 1999 and the Case was not concluded until 22 August 2000 after 10 separate hearings. This is unsatisfactory and unfair to the Defendant. Long running delays and a multitude of hearings can indicate loss of control over the case. Once the case is started then it should be concluded without undue delays. The Magistrate, who is in charge of the case, should ensure that adjournments are kept to a minimum and the case concluded within a sensible time period.

Grounds of Appeal

6. The Grounds of Appeal by the State are:

(1) that the sentences are manifestly lenient in all the circumstances;

(2) that the sentences are wrong in principle.

Circumstances of this case

7. The Magistrate's Record does not expand on the full details or circumstances I assume that the Particulars shown on the Charge Sheet for each Charge are sufficient. The details of the offences were admitted and pleas of guilty tendered.

Reference to Authorities and Reason for Sentences

8. The Magistrate gave reasons for the sentences he imposed. He had the advantage of a Probation Report which was favourable to the Respondent (Defendant) in the context of his home environment and his employment. The Report recommended probation supervision.

9. The Magistrate properly took into account the various points put forward in mitigation: including the Respondent's clear record, his age at the time of the Offences and the forgiveness proffered by the family of the defiled girl. The Magistrate expressed his understandable reluctance to send a boy this age (17) to prison.

10. The Magistrate helpfully cited a similar case heard; in April 1995 in the Appeal Court Matuku v The State (Criminal Appeal 26/93). In that case Mr Justice Scott expressed his reluctance about sending a young person to prison for the same sort of offence with which we are dealing today. Especially so where there had been no complaint made by the other Party to the intercourse, and where there had been no similar previous convictions.

Ruling/Decision

11. This Appeal by the State will be dismissed.

12. In my judgment the sentences imposed by the Magistrate were excessive rather than lenient, indeed I query whether a prison sentence in all the circumstances of the case is appropriate at all. I have difficulty in understanding why the Magistrate did not take up the Probation option.

13. This matter now on Appeal is open to review. Not only am I troubled about the sentences of imprisonment and whether they are appropriate, but I have the feeling that the Magistrate has fallen into the trap of selecting a longer period of imprisonment because he is suspending it. (If a sentence of imprisonment is appropriate the period [or length] should always be assessed first and then a decision made concerning suspension).

14. It is not easy to assess what the proper sentence should be here. Probation would have been appropriate, But I did fear it might be too late now. I am not at all sure that imprisonment is appropriate - and certainly not on an immediate basis.

After serious consideration and hearing Counsel I think the Probation order is appropriate and l will make a 12 months Order accordingly.

Explanation in "Ordinary Language" re Suspended Prison sentences

15. I mentioned earlier in this Judgment (see Para 4) the obligation of the Magistrate (or Judge) to give an explanation concerning a suspended sentence. There is no record of any such explanation being given in this case.

16. It is the Judge or Magistrate (not Counsel) who must give this explanation. A note must be made on the Court Record that the explanation has been given, and that the Accused has understood the explanation. The reason for an explanation to be given to the Accused is obvious; But it is also an explanation given in open court to the public so that they understand the (often misunderstood) position.

17. I wish to take advantage of this Judgment to set out what believe to be a sensible explanation (in ordinary language - vide Section 29(4) Penal Code to be given. Suspended Sentences are promulgated. The precise words need not be rigidly followed - but the appropriate message must be there.

Suggested Explanation
I have to explain to you now in ordinary language the meaning of the Suspended Sentence. After my explanation I shall ask you if you understand and I shall then note your reply on the Court Papers.
This Sentence of Imprisonment that I have just imposed will be suspended, or put in abeyance, for (two) year(s). This means if you get into no further trouble during the (two) year(s) from today you will hear no more about this matter.
But if you come before the Courts again within the next (two) year(s) for any Offence punishable by imprisonment then you will be liable to go to prison for the (two) year(s) I have just imposed in addition to any new sentence the Court may impose for any new offence.
Do you understand my explanation to you?

Summary

(1) Appeal by the State dismissed.
(2) Suspended Sentences of Imprisonment quashed.
(3) Probation Order for 12 months made (effective from today).

Appeal fails.

Marie Chan