Regina v Shorab [1977] FJSC 141; Criminal Appeal 115, 117, 118 & 119 of 1977 (4 November 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
APPELLATE JURISDICTION

Criminal Appeal Nos. 115, 117, 118
& 119 of 1977(Consolidated)

BETWEEN

REGINA
Appellant

AND

ABDUL SHORAB s/o Abdul Gafoor
Respondent

Mr. Ikbal Khan, Counsel for the Appellant
Respondent in Person.

JUDGMENT

This is an appeal by the D.P.P against the sentences imposed by a learned magistrate who passed terms of immediate imprisonment along with suspended sentence on the ground that this is an incorrect use of suspended sentences.

The respondent has a shocking record commencing in 1962 and continuing to date. He has 39 previous convictions including 12 for larceny, conversion and false pretences and seven for "breaking" offences. There are also several convictions for escaping from lawful custody.

In the instant proceedings there were five charges against the respondent which were set out in four charge sheets. The appellant has recited them as counts 1 and 5 in his appeal. The learned magistrate dealt with them all at the same time. The offences and sentences were as follows:-

(1) Obtaining $45.00 by false pretences, 12 months.

(2) Obtaining $17.00 by false pretences, 15 months suspended for 3 years.

(3) Escape from police custody, 9 months consecutive to count (1).

(4) Stealing $50, 18 months suspended for 3 years.

(5) Escape from police custody, 12 months of which 9 months to be concurrent and 3 months consecutive to counts (1) and (3).

Those sentences total two years.

The Supreme Court in Fiji has on several occasions intimated that suspended sentences are not intended for persons who have served terms of imprisonment. Whilst this may not perhaps be regarded as in the nature of a hard and fast rule it is one which should be carefully borne in mind. The reason for imposing a suspended sentence is that although the offence is serious and occurs in circumstances meriting a custodial sentence which in the majority of cases would be immediate imprisonment, there are factors in the accused's favour which justify its suspension. One of those factors is almost invariably that the accused has never been to prison and it is considered that he may yet be saved from that experienced. If an accused has served terms of imprisonment on other occasions it is no use avoiding an immediate term; one cannot save him from an experience which he has already undergone.

For similar reasons it is inapt to impose suspended sentences along with immediate terms of imprisonment. The suspended sentence is not then performing its function of keeping a convicted person out of prison if he is at the same time receiving an immediate term. In Uraia Tukana v R., Cr. App (Suva) 105/73, the learned Chief Justice, Sir C.H. Grant, drew attention to the inadvisability of imposing a suspended sentence along with an immediate term of imprisonment. Attention was directed to the same point in R v. Vijay Singh & Raman, Cr. App. 50/77 (Lautoka) in which judgment was delivered on 26/8/77 the date on which the above sentence were imposed by the learned magistrate.

Turning now to the difficult problem of sentence I Set Aside the suspended sentences of imprisonment on counts (2) and (4) and order that they take effect as immediate terms of imprisonment consecutive to each other but concurrent to the sentences on counts 1, 3, & 5. The total sentence to be served by the respondent will therefore be 33 months instead of the 2 years imposed by the learned magistrate. Transposing those sentences to the actual magistrate's court case numbers they will read as follows:-

Cr. Case 593/77 - 12 months imprisonment
781/77 - 781/77 - 690/77 - 691/77 -	15 months imprisonment concurrent 9 months imprisonment concurrent 18 months imprisonment consecutive 12 months imprisonment concurrent

i.e. 33 months imprisonment in all.

Might I suggest that where several terms of imprisonment are imposed consecutively and concurrently it is always helpful for the magistrate to indicate the total as a guide to those who make out prison warrants and to the prison authorities who are executing the warrants.

(Sgd.) J.T. Williams
JUDGE

LAUTOKA,
4th November, 1977.