Regina v Ram [1977] FJSC 145; Criminal Appeal 100 of 1977 (14 October 1977)

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Mr. Ikbal Khan, Counsel for the Appellant
Mr. S.R. Shankar, Counsel for the Respondent.

This appeal by the Director of Public Prosecutions against the failure of a magistrate to activate a suspended sentence alleges that the magistrate erred in principle and that the order made was made was manifestly inadequate by way of punishment.

The grounds of appeal show that on 20.th October 1975 the accused, CHET RAM, was convicted for fraudulent conversion contrary to Section 311 (i) (c) (i) P.C. and was fined $160 and sentenced to 9 months imprisonment suspended for 2 years.

That on 18/3/77 he pleaded guilty to 3 offences of Criminal Trespass contrary to Section 218(a) P.C., 2 of disorderly behaviour contrary to Section 4, Minor Offences Act 10/71, and one of Assault occasioning actual bodily harm to Section 218(a) P.C.

That on 27.7.77 the learned magistrate instead of activating the suspended sentence imposed on 25.10.75 extended the period of suspension to 19/10/78.

The grounds of appeal omit to state that between 18.3.77 and 27.7.77 the D.P.P. had already appealed against sentences imposed by the learned magistrate in all the above six cases on 18/3/77 including the magistrate's failure to activate the suspended sentence on the ground that the magistrate's approach was manifestly lenient.

In fairness to the learned magistrate I feel it is necessary to refer to the earlier appeals which, in effect, give rise to the present appeal.

On six widely different dates between 6/8/76 and 9/3/77 the accused had appeared in the magistrate's court and had pleaded not guilty to six different charges, including offences committed whilst he was on remand awaiting trial for earlier offences. Six different case files had been opened.

On 18/3/77 the accused appeared before the learned magistrate in Cr. Case 869/76, one of the aforesaid six cases, a charge of Criminal Trespass contrary to Section 218(a) P.C., and altered his plea to guilty. He expressed a desire to be made subject to a prohibitory order in relation to alcohol. His record shows that his lapses into crime, violence and hooliganism were associated with drink. The magistrate made an order prohibiting the accused from drinking or possessing alcohol and fined him $25.00. The magistrate adverted to the suspended sentence imposed on 20.10.75 for fraudulent conversion and stated that it was of a different category and it was not proper to activate it.

At that stage it appears that the learned magistrate was not aware that there were several other cases to be considered against the accused on that day. The proper course for the prosecution to have followed was to apply to consolidate all six cases so that the magistrate could deal with them all at the sametime.

Having already imposed the aforesaid prohibitory, I suspect that the learned magistrate was somewhat embarrassed when the accused kept appearing before him later in the day and pleading guilty to other offences. It may have prompted him to deal with the offences differently from the mode he would have adopted had they been consolidated. The brief details and orders made in the other five cases are as follows:-

(ii) 145/76. Cr. Trespass contrary to section 218(1) (a) P.C. 9/3/77. At 2.00 a.m accused on horseback; intoxicated; raining; called on complainant for umbrella, had to wait; returned with cane knife and threatened the complainant's wife; departed when husband appeared.

(iii) 572/76.Criminal Trespass on 7.7.76. 8.00 a.m. accused intoxicated; went to a house; entered

kitchen; pulled the wife's hand and abused her. She raised an alarm and accused departed.

(v) 669/76. Assault occasioning actual bodily harm contrary to section 277 P.C on 21.8.76. Threw a bottle at complainant who received a superficial cut on lip

It was against all the sentences in those six cases that the D.P.P had originally appealed. His appeals Nos.54 to 59/77 were consolidated at one of hearing on 17th June, 1977. I allowed all the appeals and the prohibition order was set aside as were all the orders for conditional discharges and the following sentences were substitution:-

Criminal Case	638/76-	2 months imprisonment	)
	817/76-	-do-	) concurrent
	145/77-	2 months imprisonment	)
	572/76-	-do-	)
	869/76-	-do-	)
	669/76-	4 months imprisonment ( in place of the 9 months suspended sentence for assault occasioning actual bodily harm) consecutive to the foregoing making a total of 6 months imprisonment.

I pointed out that where an accused was subject to a suspended sentence it was not normal to impose a further suspended sentence and that there had to be substantial reasons for not activating the suspended which had been imposed for fraudulent conversion on 25.10.75.

As I have said the learned magistrate, in Criminal Case 869/76, mentioned the extant suspended sentence for fraudulent conversion. Criminal Case 869/76 was for criminal trespass in which the accused went to a house at 12 mid-day. The house wife was alone with her children. Accused asked for water and when told to leave he threatened her with a knife. She ran for help. In that case the learned magistrate said,

"Suspended sentence of 20/10/75 for an offence of a different character not proper to activate."

It seemed to me that the magistrate may have thought he could not activate it where the subsequent offence was of a different character. I pointed out that under S.28B P.C the magistrate was bound to activate it unless it was unjust to do so and that he had to give his reasons for not activating. Of course the questioned of the suspended sentence was one to be considered in each of the 6 cases where a conviction had been recorded, since the cases had not been consolidated into a single hearing. However, the magistrate only made one reference to it. It seemed as though he had not purported to deal with the suspended sentence or had indicated that he was not obliged to deal with it. In the circumstances I stated that I had no power to deal with the suspended sentence unless the magistrate had purported to do so- Janus Robert Gordon's case criminal Appeal Ref. 53/69, 307 at 311. I indicated that the magistrate may see fit to deal with the suspended sentence when the records were returned to him.

The learned magistrate has now dealt with the suspended sentence. He states at p.5 of his judgment,

"I have reviewed the facts disclosed by cases 638, 145, 572, 817 and 869 of '76. They disclose one instance of disorderly behaviour and one of drunk and disorderly which are minor offences and 3 of Criminal Trespass contrary to Section 218(a) P.C. which is a misdemeanour punishable by 3 months imprisonment. All are comparatively trivial and of a totally different character from that for which the suspended sentence was imposed. For these reasons I consider it would be unjust to activate the suspended sentence imposed in Case No. 792/75 in any of the circumstance cited."

Presumably the magistrate was taking the view that in spite of the accused's bad record of 13 convictions between 1961 and 1975 and the 6 aforesaid offences which he was considering the latter were trivial even when considered in toto. As the learned magistrate correctly says the offences of disorderly conduct only carry a maximum sentence of 3 months and I readily concur that one such offence standing on its own may not have justified the activation of the suspended sentence. However, under S.4 of the Minor Offences Act 10/71, a conviction for a 3rd offence of disorderly conduct carries a maximum penalty of 12 months and the accused had previous convictions therefore apart from the two additional convictions recorded by the magistrate. The learned magistrate also stated that a conviction for Criminal Trespass only carries a maximum of 3 months imprisonment and as such it is too trivial to merit activation of the suspended sentence. However, the magistrate was not dealing with one isolated convictions for criminal trespass but with three such convictions for offences separated by reasonable periods of time. Moreover the learned magistrate must have overlooked that by S. 218(1) P.C. a criminal trespass which occurs on a human dwelling caries a maximum sentence of one year's imprisonment and all three considering activating of the suspended sentence of 25.10.75 the magistrate had to consider the effect of not only one of the five offences before him but the combined effect of 5 convictions each carrying a maximum of 12 months imprisonment in addition to the more serious offence of assault occasioning actual bodily harm.

With regard to case 689/76, of assault occasioning actual bodily harm, the magistrate originally imposed 9 months suspended for 2 years which in the exercise of my appellate jurisdiction I reduces to 4 months immediate imprisonment. The learned magistrate following the original appeals to the Supreme Court, commented that this was not a serious case of its kind and was of an entirely different character from fraudulent conversion for which the suspended sentence of 9 months had been imposed and that as the accused had not been convicted for any offence involving dishonesty since 25.10.75, it would be unjust to activate the suspended sentence. With respect I would say that the combined effect of the six convictions recorded by the magistrate was far from trivial.

The accused seems to have been treated leniently in various magistrates' courts and to have been given opportunities to improve his behaviour. On 20.3.61 he received 1 month's imprisonment for affray. In 1962 he had fines for convictions for drunk and disorderly and assault occasioning actual bodily harm. In 1965 he was convicted for being drunk and disorderly and he was again fined. Then he received one month's imprisonment in 1966 for being drunk and disorderly. He was fined $33 in 1971 for damaging property. On 26.6.72 he was sentenced to 12 months imprisonment suspended for 12 months for an act intended to cause grievous bodily harm. During the currency of that sentence he was on 4.4.73 convicted for larceny as servant and sentenced to 6 months imprisonment suspended for 18 months. I would suggest that the imposition of that additional suspended sentence for the larceny conviction was not correct sentencing practice having regard to the fact that there was a suspended sentence extant at the time. In November, 1973 the magistrate then considered activating the suspended sentence of 26.6.72 which had been imposed for the intent to cause grievous bodily harm and ordered that it should remain suspended for a further period of 18 months as from 7.11.73.

For assault occasioning actual bodily harm he was bound over on 27.9.74 and convicted again on 15.1.75 for drinking in a public place and fined $15.00. When he was convicted on 25.10.75 for fraudulent conversion he again received a suspended sentence which 9 months suspended for 2 years. He was also fined $160.00 which I am told he has paid. These repeated suspended sentences for various convictions on different occasions are contrary to the practice recommended by the English Court of Appeal.

In committing 6 offences during the first part of the last mentioned period of suspension the accused could not have been concerned about the possibility of its being activated. His experienced probably suggested that it would not be activated.

When a court imposes a suspended sentence of imprisonment one accepts that that is the term which the magistrate regards as appropriate. It is not until after he has decided upon the proper term of imprisonment that the magistrate should proceed to consider whether or not it is a case in which imprisonment should take effect immediately or be suspended –Charles Alexander O'Keefe 53 Cr. App. R. 91. That being so, when a subsequent offence is committed during the period of suspension, it should not be prima facie unjust to activate fully a sentence which was carefully weighed at the material time.

The learned magistrate's other ground for regarding it as unjust to activate the suspended sentence is that fraudulent conversion for which it had been imposed is completely different from the subsequent offence of criminal trespass, disorderly conduct and assault occasioning actual bodily harm which were before him. I would with respect agree that that is part of the approach recommended by the English Court of Appeal, but this in itself is no ground for not activating the suspended sentence. The subsequent offence should not only be different in character but should also be of a trivial nature if the suspended sentence is not to be activated, R. v. Moylan 1969, 3 A.E.R. 783 at 785. That interpretation of R. v. Moylan is supported in Principles of Sentencing by D.A. Thomas p. 226 and note 3, and also by The Journal of Criminal Law No. 157,Jan/Mar. 1976 p. 1 at p.2 which relies upon the judgment of a Northern Ireland Resident Magistrate who referred to R v. Moylan and stated-

"The mere fact that the subsequent offence is of a different character is not of itself a ground for not putting a suspended sentence into effect and there is certainly no principle or practice in favour of making the suspended sentence concurrent where the offences differ in kind. Such a suggestion is completely unfound."

I rather think that when the six cases were before him in the first instance the learned magistrate may have misunderstood the principles applied by the learned Chief Justice, Sir C.H. Grant, in his judgment in URAIA TUKANA v. R. Cr. App. (Suva) 105/73. In R. v. Vijay Singh and Raman, Cr. App. 50/77 (Lautoka), I reviewed existing authorities on the activation of suspended sentences in the course of a similar appeal by the D.P.P. in which a magistrate had not activated a suspended sentence. In allowing that appeal I referred to the above judgment (URAIA TUKANA v. R.) of the learned Chief Justice pointing out that the magistrate appeared to have read into it an interpretation of the judgment in R. v. Moylan (1969) 3 A.E.R. 783 which does not appear in the learned Chief Justice's judgment. I do not propose to review the authorities again but from then I have concluded that where the subsequent offence is not trivial and is of a different character from that for which a suspended sentence has been imposed, that in itself, is not a good reason for not activating the suspended sentence.

Of course what amounts to a trivial offence must be for the magistrate to make up his mind about. One looks not simply at the subsequent offence but also at the accused's course of conduct since the suspended sentence was imposed. A solitary offence may be trivial but its continued repetition during a period of suspension may render the accused's conduct anything but trivial.

As in the instant case a minor offence can by statute become much more serious if it is repeated and subsequent convictions can qualify for substantially heavier sentences. Likewise although a criminal trespass may be trivial in relation to certain typed of property it ceases to be trivial if it occurs in a dwelling house.

For the foregoing reasons I feel, with respect, that the learned magistrate erred in principle when he described the accused's six offences as amounting to something trivial. The accused's behaviour followed a pattern which is consistent with his record. He showed a disregard for the sanction of a suspended sentence. In any event, the accused was, as a result of the D.P.P.'s successful appeal, serving a sentence of 6 months imprisonment at the time the magistrate extended the period of suspension which had been imposed for fraudulent conversion on 25.10.75. The Court of Appeal (English) has set its face against the imposition of a suspended sentence concurrent with a terms(s) of immediate imprisonment.

I order that the sentence of 9 months imprisonment suspended for 2 years imposed for fraudulent conversion on 25/10/75 shall take effect as an immediate term of imprisonment consecutive to the 6 months imprisonment imposed in Criminal Appeals 54/77 to 59/77 (consolidated).

Director of Public Prosecutions for the Appellant
Messrs G.P. Shankar & Co., for the Respondent.

Supreme Court of Fiji

Regina v Ram [1977] FJSC 145; Criminal Appeal 100 of 1977 (14 October 1977)