Regina v Singh [1977] FJSC 181; Criminal Appeal 50 of 1977 (26 August 1977)

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

Criminal Appeal No.50 of 1977

BETWEEN

REGINA
(Appellant)

AND

1. VIJAY SINGH alias Tigger
s/o Jalim Singh
2. RAMAN
s/o Sanyasi
(Respondents)

Ikbal Khan, Counsel for the Appellant
G.P. Shankar, Counsel for the Respondents

JUDGMENT

Vijay Singh and one Raman were jointly charged for robbery with violence and both pleaded Not Guilty before a magistrate on 1/3/76.

After the case had been mentioned 15 times a hearing date was fixed for 28/4/77 when the prosecution added an alternative charge for larceny from the person to which both accuseds pleaded guilty.

They were represented by Mr. Sahu Khan and on this appeal by Mr. G.P.Shankar. The latter raised a preliminary point on a matter of procedure which would have determined, the appeal proceedings had it been successful. A separate ruling thereon is attached to this judgment.

The appeal was brought by the D.P.P. who complained that the sentence of 18 months imprisonment suspended for 2 years imposed upon Vijay Singh was too lenient, and that the magistrate’s decision not to activate a suspended sentence of 9 months imprisonment which was extant when the offence of larceny from the person was committed was wrong in principle.

The accused Raman was sentenced to 12 months imprisonment for 2 years but the D.P.P lodged no appeal in connection with that sentence. The offence is a serious one and I therefore directed that Raman should appear during this appeal and show cause why his sentence should not be reviewed. He was, in effect, joined as a respondent to the appeal and Mr. G.P. Shankar appeared for them both when the trial named following the aforementioned ruling.

The facts are that the two accuseds and the complainant were drinking with others in a club when quarrel arose in connection with Hindu religious ethics.

The accused Vijay Singh and Raman were threatened to punch the complainant and then told his co-accused Raman to take $20.00 from complainant's pocket whilst Vijay Singh held him by his shirt. When the money had been appropriated the complainant fled and he reported the matter to the police.

Larceny from the person has always been regarded, in my experience, as a serious offence usually meriting immediate imprisonment. The degree of force used in this case is a disturbing feature when one considers that the aggressors were professional wrestlers. Therefore I called upon the accused Raman to appear on the question of sentence.

This offence was analogous to what unpleasant offence known as "mugging" and which the Court of Appeal regards as falling short of robbery in that it is spontaneous rather than something deliberately planned. Violence was used to obtain the complainant's $20.00 but I think that the magistrate rightly accepted the alternative count of larceny from the person under S.303 of P.C. which attracts a maximum sentence of 14 years imprisonment.

In my view the sentences of 18 months and 12 months imposed by the learned magistrate were not excessive. Although Vijay Singh has previous convictions for dishonesty and for violence I would not say that the sentence of 18 months was excessively lenient but reasons which appear hereinafter I feel it should not have been suspended.

I turned now to the complaint that the magistrate erred in not activating the sentence of 9 months imprisonment which had been imposed on Vijay Singh and suspended for 12 months.

On 3.9.75 for assault occasioning actual bodily harm contrary to S.227 P.C., he was sentenced to 9 months imprisonment suspended for 12 months. The offence in this appeal was committed on 16/2/76 less than 6 months after the suspended sentence had been imposed. The magistrate observed that the offences were in different categories and therefore he need not activate the suspended sentence. I propose to review such principles as appear to have emerged in relation to the activating of suspended sentences in the past few years.

The approach to this question is considered by D.A. Thomas in Principles of Sentencing at p. 226 where he succinctly sets out the provisions of S.28B of our P.C. which is taken from the English law in regard to the activation of sentences. He says,

"Where the court ................................................ is satisfied that the offender has been convicted ....................... during the operational period of a suspended sentence, ......................... it “ must take one of four courses; ............... ."

Those courses are set out in S. 28B P.C. which reads:-

"28B. (1) Where an offender is convicted of an offence punishable with imprisonment committed during the operational period of a suspended sentence and either he was convicted by or before a court having power under the supervisions of the next succeeding section to deal with him in respect of the suspended sentence or who subsequently appears or is brought before a court, then, unless the sentence has already taken effect, that court shall consider his case and deal with him by one of the following methods:-

(a) the court may order that the suspended sentence shall take effect with the original term unaltered;

(b) it may order that the sentence shall take effect with the substitution of a lesser term for the original term;

(c) it may by order vary the original order made under the provisions for subsection (1) of the last preceding section by substituting for the period specified therein a period expiring not later than three years from the date of the variation; or

(d) it may make any order with respect to the suspended sentence, and a court shall make an order under paragraph (a) of this sub-section unless the court is of opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentences was passed, including the facts of the subsequent, offence and, where it is of that opinion, the court shall state its reasons.

(2) Where a court orders that a suspended sentence shall take effect with or without any variation of the original term, the court may order that that sentence shall take effect immediately or that the term thereof shall commence on the expiry of another term of the imprisonment passed on the offender by that or any other court.

(3) For the purpose of any written law conferring rights of appeal in criminal cases, any order made by a court under the provisions of subsection (1) of this section shall be treated as a sentence passed on the offender by that court for the offence for which the suspended sentence was passed."

In note 3 to p. 226 the learned author says,

"The Court of Appeal has stated that enforcement of the sentence (i.e. activation of a suspended sentence) is the normal and proper course except in exceptional circumstances, by the court may consider as unjust the activation of a suspended sentence where the new offence is comparatively trivial and where it is in a different category from that for which the suspended sentence was imposed."

Those remarks simply follow the terms of S. 28B (1)(d) P.C. If the court makes an order under paras (b) (c) or (d), that is to say an order which does not activate or fully activate the suspended sentence it must give reasons showing why it would be unjust to activate it.

In Vijay Singh's case the magistrate did not activate the suspended sentence by he gave no reasons why it would be unjust to do so. He simply said that the offence (larceny from the person) for which he had convicted the accused was not in the same category as the offence (assault occasioning actual bodily harm) for which the suspended sentence had been imposed, and therefore "heed not" activate the suspended sentence. I am sure the learned magistrate will agree that this is not the same as saying that it would be unjust to activate it.

One accepts that when a magistrate imposes a sentence of imprisonment, albeit suspended, it has been merited. English courts have laid down, and this has been followed in Fiji, that in assessing a term of imprisonment the magistrate must not take into account the fact that he intends to suspend it. Thus he must make the term longer because it is to be suspended and may never be activated. The length of the term imposed should be that which the magistrate genuinely feels is proper for that offence having regard to all the factors which he must consider. Where a magistrate imposes a suspended sentence the Ordinance requires that the accused should be told that if he commits any other offence meriting imprisonment he is liable to serve the suspended term in addition to any other term. Such a statutory provision suggests that they must be some compelling reason why the suspended sentence should not be activated following a subsequent conviction for an offence meriting imprisonment.

Recently the Court of Appeal, Cr. Divn., indicated the mode in which an accused should be addressed when receiving a suspended sentence. In R v Holdsworth, reported (for other reasons) in The Times, Wed. Jun. 22nd 1977, Wein J. said to an appellant, who had been convicted of indecent assault, when reducing the sentence imposed by the Crown Court:-

"The substituted sentence of 6 months imprisonment suspended for 2 years means that if at any time during the next 2 years you commit any other offence of any other kind, you will be liable to be punished, not only for that offence, but for this offence for which the 6 months imprisonment was imposed."

The learned magistrate's opinion that because the offences were in different categories "he need not" activate the suspended sentence contrasts with the words of Wien J., who said "if ...................... you commit any other offence of any other kind ................... ." He did not say if you commit any other offence of similar category".

There seems to be an impression in Fiji that where an accused already under a suspended sentence is subsequently convicted of a totally different offence, no matter how serious, then the suspended sentence should not be activated. The words of the Court of Appeal in Holdsworth's case (supra) make it apparent that the subsequent offence need not be similar before the suspended sentence is activated; but an offence of any other kind is sufficient.

Maybe the magistrate had in mind the judgment of the learned Chief Justice in URAIA TUKANA v R. Cr. Appeal (Suva) 105/73, which I think has been misunderstood by some magistrates. In that case an accused under a 12 month suspended sentence for larceny was subsequently convicted for gross indecency with a male and the magistrate activated the suspended sentence for larceny but then imposed a suspended sentence of 9 months for the gross indecency.

The learned Chief Justice started that the magistrate had erred in imposing a suspended sentence upon a person who was at the same time being sentenced to immediate imprisonment. It has been held for obvious reasons that a sentence of immediate imprisonment and a suspended sentence should not be imposed at the same time. The purpose of a suspended sentence is to keep an offender out of prison to enable him to reform under the sanction of immediate imprisonment if he fails. That purpose cannot be achieved if the offender is in prison during the period of suspicion. The learned Chief Justice also said:-

"In the second place, the new offence being of a sexual nature is entirely out of character with the appellant's previous criminal activity, a factor which should have been taken into consideration- R v. Woods (1962) Cr. L.R. 646".

The Chief Justice was not putting this forward as a factor in determining whether to activate the suspended sentence, but one to be considered in assessing the appropriate sentence for the sexual offences.

What was said in R v. Woods (supra) is that in assessing the punishment for any offence "there was no rule that only previous convictions of the same type should be considered but consideration would always be given to the fact that the offence was out of character with or was part of the accused's ordinary criminal activity". Woods' case (supra) does not relate to the activation of suspended sentences and the learned Chief Justice was not at that stage of his judgment considering the activation of a suspended sentence. He was deciding whether 9 months imprisonment for indecent conduct was appropriate in that case and he concluded that it was not because the accused's history revealed no tendency to indecent behaviour, and the offence was a momentary lapse.

Therefore he replaced the suspended sentence of 9 months imprisonment by a period of probation. In the learned Chief Justice's view the indecent conduct did not merit imprisonment either suspended or immediate.

It is essential to bear that in mind when considering the learned Chief Justice's approach to the question of activating the suspended sentence which had been imposed for larceny. I quote him at length,

"In the third place, no consideration appears to have been given to the fact that the new offence is in a completely different category from that for which the original suspended sentence was imposed, rendering it unjust to make the original suspended sentence operative. In R v. Griffiths (1969) 53 Cr. App.R.424 at 427 Widgery L.J stated: "the facts of the subsequent offence are clearly appropriate for consideration in deciding whether the suspended sentence should be put into effect. Undoubtedly a Court....is entitled to look at the facts of the subsequent offence and, if it thinks right in the circumstances, to say it would be unjust in view of the character of that offence to make the suspended sentences operative." As the appellant informed the sentencing Magistrate that he was under the influence of liquor when he committed the new offence, which the sentencing Magistrate appears to have accepted in view of his imposition of a prohibition order, the comments of Widgery L.J. in R v. Moylan (1969) 3 ALL E.R. 783 at 785 are also appropriate, to wit: "We think it quite clear that the court may properly consider as unjust the activation of a suspended sentence where the new offence is a comparatively trivial offence, and, particularly, where it is in a different category from that for which the suspended sentence was imposed. It is trite to say that every case depends on its circumstances, and so it does. But there must be many instances in practice where a relatively minor offence committed in drink can....give rise to the activation of a heavy suspended sentence, and we recognise that it is proper for the court considering the matter to regard this as unjust in an appropriate case."

In R v. Moylan (supra) the Court of Appeal said it could be unjust to activate a suspended sentence where the subsequent offence was not only trivial but also of a completely different character.

The Chief Justice had regard to the factors laid down in R v. Moylan (supra) viz. (1) that the subsequent offence of the indecent conduct was in that accused's case of a nature to merit no imprisonment and (2) that it was of a different category from the offence of larceny for which the suspended sentence had been imposed.

Where the subsequent offence is of a different category this in itself is not a good reason for not activating the suspended sentence unless it also deserves or merits no immediate term of imprisonment or other serious punishment. Thus in R v. Griffiths (supra) the appellant who was subject to a suspended sentence of 12 months for factory breaking was convicted of dangerous driving and common assault and sentenced to 9 months and 3 months concurrently. The judge activated the suspended sentence of 12 months which had imposed for factory breaking making it consecutive to the sentence he was imposing for dangerous driving and assault. The appellant had no record for driving offences and although dangerous driving and assault are different from factory breaking, the Court of Appeal approved activation of the suspended sentence. Again in R v. Goodlad, 1973, 1 W.L.R., 1108, the accused whilst under a suspended sentence for burglary was convicted for assault causing grievous bodily harm and sentenced to 18 months imprisonment. The judge said it would be unjust to activate the suspended sentence and he altered its period of suspension to run for 2 years from the date of the immediate prison sentence. Lord Widgery C.J. declared that the judge had erred in principle saying at 1104 B/C:-

"................... he should not have left the sentence in suspense, and added to the operational period, but should not have activated it, the reason being that the Court has generally set its face against a distuation in which one man is subject to an immediate prison sentence and a suspended prison sentence at the same time."

In R v. Sapiano (supra) Lord Parker C.J. said much the same thing and in R v. Butters 1971, 53 Cr. App. R. 515 at 521 Roskill J. said,

"It seems to this Court that in general, courts of trial should avoid "mixing up" sentences which fall into different categories. It is in general bad sentencing practice to pass concurrent sentences of imprisonment, the one immediate and the other suspended."

In the foregoing cases the subsequent offence was in a different category from that for which the suspended sentence had been imposed but the Court of Appeal activated the suspended sentences in all 3 cases.

With respect I consider that the learned magistrate erred in principle when he said he need not activate the suspended sentence for assault occasioning actual bodily harm because the subsequent offence of larceny from the person was in a different category. Once decided that the subsequent offence merited 18 months imprisonment he should have decided that this was sufficient to activate the suspended sentence unless it was in some other way unjust so to do.

Applying the ordinary principles of sentencing to the offence of larceny from the person, I consider that the learned magistrate should not have suspended the term of imprisonment on Vijay Singh who has convictions for larceny, assault, malicious damage and assault occasioning actual bodily harm.

A professional wrestler should not assault and intimidate others. He held the complainant against a wall whilst another professional wrestler removed $20 from the complainant's person. Larceny from the person carries maximum term of 14 years imprisonment. There was a distinct element of violence in this case which is in keeping with the accused 1's record. In R v. Woods, 1962 Cr.L.Rev. 646 the accused was on probation when he was convicted of assault occasioning actual bodily harm. He had no previous convictions for violence but had them for dishonesty. He was sentenced to 2 years imprisonment which the Court of Appeal upheld. Lord Parker said that there was no rule that only previous convictions of a similar type should be considered but consideration would always be given to the fact that an offence was out of character with or was part of the accused's criminal activity. He said there was nothing wrong, in principle in taking into account that the accused was undeterred from committing offences and had not benefitted from probation. In the instant case the accused Vijay Singh has not been deterred by the suspended sentence or by being over on the earlier occasions.

As the learned author of "Principles of Sentencing", D.A. Thomas, wrote in the Cr. L. Rev. 1974, 684 at 688 with regard to the imposition of suspended sentences:-

"If it is of any use in a system already equipped with probation and conditional discharge, it is in relation to relatively serious cases where the offence would normally attract a substantial sentence but quite exceptional mitigating circumstances justify a departure from normal practice."

The offence in question was of the kind known as "mugging", which the Court of Appeal (Engl.) regards as falling short of robbery in that it is spontaneous rather than deliberately planned.

In February 1961 Vijay Singh was fined ₤8.0.0 for assault, in 1963 he was bound over for assault occasioning actual bodily harm, in 1972 he was again bound over for a similar offence, and in 1974 he was fined $25.00 and again bound over for a similar offence and was sentenced to 9 months imprisonment suspended for 12 months, the non-activation of which is now in question. It appears that he has a disposition towards violence and although it may be due to drink it is something which he should try to control. Would he be so prone to violence were he not a professional wrestler and confident of his superiority in this field as against the average layman. All the factors pleaded in mitigation before me must have been pleaded in past offences and the accused cannot rely upon them indefinitely to save him from punishment. The time has come when he needs a sharp lesson.

I am told that the accuseds have paid $40.00 to the complainant and that there has been a reconciliation. However, this is not something connected with the circumstances of the crime, or with the accused's past behaviour; it can spring from remorse or from a desire to avoid or reduce any well deserved punishment. The Court would not impose a more severe sentence because the complainant refused to be reconciled.

The 18 months suspended sentence of imprisonment imposed on Vijay Singh for the crime of larceny from the person is varied to one of immediate imprisonment.

What should be done with regard to the sentence of 9 months suspended for 12 months which had been imposed a few months earlier for assault occasioning actual bodily harm? It cannot continue alongside the sentence of immediate imprisonment and in accordance with the principles I have outlined, it should be activated. In considering whether it should be consecutive or concurrent it appears to me that the deterrent effect of suspended sentences would be lost if they are constantly made to run concurrently, when activated, with a term of immediate imprisonment for a subsequent offence. In R v. John Foster Ithal & Ors. 1969 Cr.App.Rep.210 at 212 the Court of Appeal's judgment contains the following passage:-

".......................... as the Lord Chief Justice said in Brown & Harris decided by this Court on November 14th, 1968, unless there are some exceptional circumstances the suspended sentence should be ordered to run consecutively to the sentence given for the current offence."

I have observed no exceptional circumstances which would justify as in departing from the practice indicated. When a suspended sentence is imposed the accused is informed that a subsequent offence is likely to cause the sentence to become one of immediate imprisonment. The fact that it would probably result in a fairly long term is something of which the accused has always been aware and it is a risk which he has accepted.

Therefore I Order that the 9 months suspended sentence imposed on Vijay Singh should be activated to run consecutively to the 18 months for larceny from the person.

Turning now to the case of Raman who has no previous convictions and on whom the magistrate imposed a sentence of 12 months imprisonment suspended for 2 years. The offence was analogous to that unpleasant crime of "mugging", which is frequent in Fiji. In Thomas's Principles of Sentencing the learned author states at p 135/136 that where such offences involve a minimum of violence the term of imprisonment which may be as high as 6 years falls to 3 years and where the part played by one accused is in a lesser role, e.g. acting as a look-out he can expect to receive, on occasions, a shorter term than his co-accuseds. Raman's role in this case was no less than that of Vijay Singh. I think the magistrate's assessment of 12 months imprisonment in Raman's case is proper. There are many categories of offence where the mitigating feature of good character and no previous convictions will not avoid an immediate sentence of imprisonment. Raman's case is one of them. The suspended sentence upon Raman is varied to take effect as an immediate term of imprisonment.

It means that Vijay Singh receives 18 months imprisonment for larceny from the person and 9 months imprisonment for assault occasioning actual bodily harm to be served consecutively.

AND Raman receives 12 months imprisonment for larceny from the person.

(SGD) J. T. WILLIAMS
JUDGE

LAUTOKA
26th August, 1977.

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

Date of Hearing: 12th August, 1977.