Director of Public Prosecutions v Vuki [1977] FJSC 96; Criminal Appeal 116 of 1977 (25 November 1977)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 116 OF 1977

DIRECTOR OF PUBLIC PROSECUTIONS
Appellant

v.

ISOA VUKI
Respondent

JUDGMENT

This is an appeal by the Director of Public Prosecutions against, the decision of the Magistrates Court Suva to make an activated suspended sentence concurrent with the substantive sentence of 31 years imposed on the respondent on the 31st August, 1977 on the ground that the learned trial Magistrate erred in principle in so doing without finding special reasons.

The respondent was, on the 31st August, 1977 convicted of Robbery with Violence contrary to section 326(1)(a) of the Penal Code and sentenced to 3 1/2 years' imprisonment.

On the 10th September, 1976 the respondent was convicted of the offence of Housebreaking, Entering and Larceny contrary to section 333(a) of the Penal Code and was sentenced to 2 years' imprisonment suspended for three years under section 28(a) of the Penal Code.

The Record indicates that on sentencing the respondent after his conviction for robbery the Magistrate said:

"3 years imprisonment suspended sentence will be activated but in view of accused's relative youth I will order that it be served concurrently."

The respondent was 18 years of age at the time he was convicted.

Section 28B of the Penal Code specifies the powers of a Court on conviction of a further offence, to deal with a suspended sentence.

The Court must consider the case and must take one of the four courses specified in section 28B(1)(a) to (d). It is mandatory to make an order under the first of the four courses (a) that is that the Court may order that the suspended sentence shall take effect with the original term unaltered unless the Court is of the opinion that it would be unjust to do so. In view of all the circumstances which have arisen since the suspended sentence was passed, including the facts of the subsequent offence and, where it is of that opinion, the Court shall state its reasons.

Mr. Fa quoted Ithell and Isa (1969) 2 All E.R. 91 in support of his argument that the learned Magistrate's order that the activated suspended sentence run concurrently with the sentence imposed for the robbery offence was wrong in principle.

Edmund Davies L.J. in that case referred to what Lord Parker L.J. said in R. v. Brown:

"Unless there are some quite exceptional circumstances the suspended sentence should be ordered to run consecutively to the sentence given for the current offence."

In Ithell's case the trial judge had first considered the suspended sentence before dealing with the offence before him and it was held that this was not the proper approach.

In the instant case the trial Magistrate did not make this mistake. He first considered the appropriate sentence for the offence and then considered the suspended sentence and gave his reasons for ordering the activated sentence to run concurrently.

Under section 28B(2) a Court may order that the activated sentence shall take effect immediately or on the expiry of another term of imprisonment imposed by that Court. By making the activated sentence run concurrently with the sentence for the robbery offence the Magistrate in this instance ordered the activated sentence to take effect immediately.

While the Magistrate's action would appear to run counter to the principles of sentencing enunciated in Ithell's case that case does indicate that in exceptional cases a suspended sentence which is activated does not have to run consecutively to the sentence given for the current offence.

In my view there were exceptional circumstances in this case. The respondent is a young man of 18 years of age.

If his suspended sentence had been ordered to run consecutively to the sentence of 31 years' imprisonment imposed for the robbery offence he would have to serve 5 ½ years' imprisonment.

In R. v Bocskei (1970) Crim. L.R. 593 a suspended sentence was ordered to run consecutively to sentences for other offences committed. The report states:

"As to the allegation of disparity when consecutive sentences are imposed the final duty of the sentencer is to make sure the total is not excessive. If he thinks the total is excessive it is his duty to reduce it, and where a suspended sentence is involved he may either reduce the sentence for the instant offence or reduce the term of the suspended sentence."

The Magistrate obviously considered 5 ½ years' imprisonment for an 18 year old youth excessive, a view which is shared by the Crown Prosecutor.

The Magistrate could have met this problem in one of several ways. He could have refused to activate the suspended sentence, or reduced that sentence or the sentence for the subsequent offence or as provided by section 28(B)(1) of the Criminal Procedure Code he could have made any order with respect to the suspended sentence.

It would have been preferable to have made no order activating the suspended sentence in the circumstances and reasons given for such actions instead of ordering the suspended sentence to run concurrently thereby following established principles of sentencing. However in view of the provisions of section 28(B) of the Criminal Procedure Code which the Magistrate did follow he achieved the result which the circumstances warranted and in so doing he was in my view justified.

The appeal accordingly fails and is dismissed.

R.G. Kermode
JUDGE

Suva,
25th November, 1977.