Regina v Ram [1977] FJSC 164; Criminal Appeal 54 of 1977 (17 June 1977)

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

Appellate Jurisdiction
Criminal Appeal No. 54 of 1977

BETWEEN:

REGINA
(Appellant)

AND:

CHET RAM s/o Budh Ram
(Respondent)

Mr. I. Khan, Counsel for the Appellant
Respondent in person.

JUDGMENT

The Crown are appealing against the sentences imposed by a magistrate, on one CHET RAM, in six criminal cases which were heard on 18.3.77. The appeals are Nos. 54 to 59 of 1977.

In every case except one the accused had pleaded Not Guilty but after several appearances tendered a plea of Guilty.

The cases which I will refer to by the members given in the magistrate's court are as follows:-

638/76. Disorderly behaviour contrary to section 4 of the Minor Offences Act 10 of 1971 on 6/8/76.

Facts. Abusing neighbours.

Sentence. Disturbing under s.38 P.C. conditional for 12 months.

First appearance in Court on 4.10.76.

669/76. Assault occasioning actual bodily harm contrary to section 277 P.C. on 21/8/76.

Facts. Accused threw a bottle at complaint who received a superficial out on lip.

Sentence. 9 months suspended for two years. First appearance in Court 6.9.76.

145/76. Criminal Trespass contrary to s.218 (1) (a) P.C. on 5/3/77.

Facts. Accused threw a bottle at complainant who received a superficial cut on lip.

Sentence. 9 months suspended for 2 years. First appearance in Court 6.9.76.

145/76. Criminal Trespass contrary to s.218 (1) (a) P.C. on 5/3/77.

Facts. At 2 a.m. 5/3/77 accused intoxicated, on horseback; caught in rain, called on complainant for umbrella; annoyed at being caused to wait for umbrella; received umbrella. Returned with cane knife; threatened and abused the house wife but departed when the husband appeared.

Sentence. Conditional discharge over 12 months period under s.38 (1) P.C. First appearance in Court 18/3/77.

572/76. Criminal trespass contrary to s.218 (1) (a) P.C. on 7.7.76.

Facts. 6 a.m. complainant left his wife and children at home. 8 a.m., accused who was drank went to house, went into kitchen pulled her hand and abused her. The wife raised alarm – accused departed.

Sentence. Sm38 (1) P.C. First appearance in Court 9.8.76.

817/76. Drank & Disorderly contrary to S.4 Minor Offences Act 10/71 on 26.10.76.

Facts.

Sentence. S.38 (1) P.C. First appearance in Court 8/11/76.

869/76. Criminal Trespass contrary to S.218 (1) (a) P.C. on 26/11/76.

Facts. At 12 midnight went to house. Wife alone with the children. Asked for water. She told him to leave. Accused threatened her with knife. Wife ran for help.

Sentence. Fine $25.00 or 2 month's imprisonment. First appearance in Court 6.12.76. Prohibited from possessing or drinking alcohol for 2 years under s.68 Liquor Ordinance.

In passing the immediately preceding sentence the magistrate remarked that accused had a drink problem and said,

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

As may be imagined from the list of foregoing offences the accused has a record of previous convictions. In fact he has what can only be described as an appalling record which commence as far back as 1961 and reveals 16 previous convictions the last one being on 9/12/75.

It is fairly clear from a perusal of the accused's past record and his present convictions that the accused has a drink problem and that when he is drank he is inclined to be a nuisance to the public and aggressive and at vicious.

People who are alcoholics or near alcoholics no doubt suffer from an almost uncontrollable urge to consume alcohol. The existence of such organisations as "alcoholics anonymous" throughout the entire world proclaims the extent and seriousness of this social problem. Nevertheless it is not every person with a drink problem who is aggressive and vicious or a nuisance to his neighbours and those around him and a man cannot be permitted to repeatedly break the law because he has a drink problem.

The learned magistrate undoubtedly felt that the accused needed some strong incentive to help him stay away from drink and for that reason he imposed the Prohibition Order in case 869/77. It is an order which bars the person subject to it from possessing alcohol and in the event of a breach carries very heavy penalties. It could provide substantial incentive to the accused to reform his drunken habits. However, there are other factors in the accused's scope in selecting what he considered to be the best way of dealing with the accused.

As I have indicated the magistrate in making the Prohibition Order referred to a suspended sentence which had been imposed on an accused on 20/10/75. It followed a conviction for fraudulent conversion contrary to section 311(1)(x)(1) P.C. and the sentence was one of 9 months imprisonment suspended for 2 years. The magistrate decided not to activate it because in his opinion the offence of criminal trespass with which he was then dealing was out of keeping with the offence of fraudulent conversion for which the suspended sentence had been imposed.

However, the magistrate was not considering one solitary offence of criminal trespass. He was on that day, namely 18th March 1977, dealing with the 6 aforesaid offences, one of which, Criminal Case 669/76 was a serious enough assault to cause the magistrate to impose a sentence of 9 months suspended for 2 years. In passing that sentence the magistrate may have completely overlooked the fact that the accused was already the subject of a sentence of 9 months suspended for 2 years.

The Crown have appealed against the magistrate's failure to activate the suspended sentence of 20/10/75 (Supra) and to make an order in relation to it. For reasons appearing hereinafter I am of the opinion that the magistrate's omission to deal with a suspended sentence when convicting an accused of a subsequent offence cannot be the subject of an appeal but should be dealt with by way of mandamus.

The Supreme Court in numerous judgements delivered on appeals has referred on appeals has referred magistrates to the provision of S.28A of the P.C. which confers the power of imposing suspended sentences. S. 28A of the P.C. which confers the power of imposing suspended sentences. S. 28B(1) states that where during the operational period of a suspended sentence the offender is convicted of an offence punishable with imprisonment the court shall with the suspended sentence by (a) by increasing the balance of the period of suspension to not more than 3 years; or (d) make any order with respect to the suspended sentence.

It is clear from S. 28B (1) that a magistrate cannot ignore the suspended sentence; he must do something about it. Although under S.28B (1) (d) he may make any order he obviously cannot order that nothing be dome about it. In fact S.28B (1) (d) is followed by a positive direction that the court shall activate the suspended sentence for the full term unless it would be unjust to do so in view of circumstances which have arisen since it was passed including the facts of the subsequent offence, AND it also states that if a magistrate takes this course he shall state his reasons for so doing. The fact that the subsequent conviction is for a different offence from that for which the suspended sentence was imposed can scarcely be sufficient reason for its not being activated, the reasons must have to do with circumstances which have arisen the suspended sentence was imposed. S.28B (1) which deals with the activation of suspended sentences states that –

"Where an offender is convicted of an offence punishable with imprisonment committed during the operational period of a suspended sentence -------."

the court shall deal with the suspended sentence. All the six offences for which the accused was convicted were punishable with imprisonment. They were all committed during the operational period of the suspended sentence. It was not sufficient for the magistrate to select only one of those subsequent convictions and say it was not sufficient to justify activation of the suspended sentence and on that basis alone to make no order.

Therefore unless he was of the opinion that it was unjust to do so, for which he would give reasons, the magistrate should have activated the suspended sentence. Having regard to the accused's six convictions outlined above, all for the offences committed during the period of suspension, one of which in case 669/76 being an assault which was, in the convicting magistrate's view, serious enough to merit 9 months imprisonments suspended for 2 years, it can scarcely be argued that it would have been unjust to follow the direction contained in S.28B (1) (a) by activating the sentence.

It has been pointed out by the Chief Justice and judges that where an accused who is subject to an existing suspended sentence is convicted during that term for a subsequent offence it is not appropriate to deal with him by imposing yet another suspended sentence. In fact S.28B (1) makes it apparent that unless it is unjust to do so the suspended sentence must be activated.

It would be inappropriate to activate a suspended sentence because of a subsequent conviction and at the same time impose a sentence of 9 months suspended for 2 years in respect of that subsequent conviction. Since the learned magistrate ought to activate the suspended sentence of 20.10.75 it follows that the 9 months suspended sentence he imposed on 28.3.77 for assault occasioning bodily harm is not appropriate in that the accused would be imprison for part of the operational period.

Therefore I set aside the sentence of 9 months suspended for 2 years passed by the magistrate in Cr.Case 669/76 for assault occasioning actual bodily harm. The assault which took the form of throwing a bottle at the complainant could have had more serious consequences than slightly cutting the complainant's top lip. However, I consider it fair to deal with the accused on the basis of the injury actually inflicted bearing in mind the unpleasant way in which it was caused. I regard a sentence of 4 months imprisonment as being adequate for that offence. Turning now to other 5 convictions it seems to me that conditional discharges operating for a period of 12 months should not run concurrently to a term of imprisonment imposed on the same date.

The offence in Cr.Case 638/76 Disorderly Behaviour carries 12 months imprisonment on a third conviction. The accused has 5 previous convictions for that offence. Cr.Case 817/76 is for a similar offence. I set aside the magistrate's orders and impose a sentence of 2 months on each of those offences; concurrent to each other but consecutive to the foregoing sentence of 4 months imprisonment.

For the convictions of Criminal Trespass in Cr.Case 145/77, 572/76 I set aside the magistrate's sentence and I impose sentences of 3 months' imprisonment in each case concurrent to each other and to the sentence already imposed.

Thus the total sentence to be served is 6 months.

For the purpose of clarification I make the following order:-

Order:-

The sentences and orders passed and made by the magistrate in Criminal Cases 638/76, 669/76, 145/77,572/76, 817/76 & 869/76 are set aside and in their places I impose the following sentences:-

Cr.App. No. 55/77-Cr.Case 669/76 – 4 months imprisonment
Cr.App. No. 54/77-Cr.Case 638/77 – 2 months imprisonment consecutive to the above 4 months.
Cr.App. No. 58/77-Cr.Case 817/76 – 2 months concurrent to the foregoing
Cr.App. No. 56/77-Cr.Case 145/76 – 3 months concurrent
Cr.App. No. 57/77-Cr.Case 572/76 – 3 months concurrent
Cr.App. No. 59/77-Cr.Case 869/76 – 3 months concurrent

That is the total of 6 months in all.

It will be noted that I have not made any order in relation to the suspended sentence of 20/10/75 which the magistrate did not deal with. This is because, in my view the Ordinance gives me no power to deal with it in place of the magistrate. I only have jurisdiction in a case where the magistrate has purported to deal with it. It can then be the subject of an appeal against sentence or on some ground of law.

The magistrate having misinterpreted his duties under S.28 P.C. should now go ahead and deal with the suspended sentence but I have no power to order him to do so. The Crown however, may ask this court for an order of mandamus directing the magistrate to carry out his duty in relation to that sentence as was pointed out in James Robert Gordon's case, Cr.App.R. 53/69, 307 at 311.

(SGD) J. T. WILLIAMS
JUDGE

LAUTOKA,
17th June, 1977.