Regina v Kumar [1979] FJSC 35; Criminal Appeal No. 62 OF 1979 (7 November 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT IAUTOKA
APPELATE JURISDICTION

CRIMINAL APPEAL N0 62 of 1979

Between:

REGINA
Appellant

And:

CHANDAR SEN KUMAR
s/o KADE DIN
Respondent

Mr. D. Williams, for the Appellant
Respondent appeared in person

JUDGMENT

The accused in this case was convicted on his own plea of the offence of shop breaking, entering and larceny of goods worth $61.34, and sentenced to 9 months imprisonment, which sentence was suspended conditionally for 2 years. It is against this sentence that the Crown appeals on the ground that it is manifestly inadequate having regard to the circumstances of the case.

In arguing the Crown's appeal Crown Counsel started off by stating that there were a number of similar cases dealt with by the same magistrate where sentences were generally too low or were so disparate as to be unexplainable. I was only referred to two other cases which is hardly sufficient to draw any conclusions, but in any case if the situation is as Crown Counsel says the right course might be to ask the Supreme Court to review all, or a representative number of the cases involved. In this appeal I must consider the issue and circumstances in this case and the principles involved.

The accused worked in the complainant's shop at week ends and at some time must have stolen a key to the shop. To that extent this was a planned shop-breaking, the accused using the key to gain access to the shop and stealing the goods in question. On the way home he was stopped by a policeman and taken to the police station on suspicion. There is little in the circumstances of the case to be said in favour of the accused. All the property was recovered, but that was due to the vigilance of the policeman who stopped him and is nothing in the accused's favour.

But there are certain factors in the accused's favour. At the time of the offence the accused was 17 years and 7 months old, he is a student who will be sitting for his U.E. at the end of the year. He is a first offender, he pleaded guilty immediately, he has a good school report and there is a very favourable letter from his headmaster. In passing sentence the magistrate said

"This is a prevalent offence and the court takes a serious view of it. Accused is just over the juvenile age and is a student. He tells Court that he will be sitting for his U.E at the end of this year. He pleaded guilty and items stolen have been recovered. These factors have been considered to determine whether custodial sentence should be imposed. I find that accused is too young to be sent to jail. With his further education he may turn out to be a good citizen."

Crown Counsel argued that the magistrate tackled the question of sentence the wrong way in deciding that accused was too young to be sent to prison and therefore to suspend sentence before deciding what sentence was appropriate. With due respect I do not consider that the magistrate's approach was wrong or out of order. The expression of his view left something to be desired, but I interpret his remarks to mean that the appropriate sentence for the offence would be 9 months imprisonment, but that considering the youth of the accused, his academic background and the strong possibility that he has learned his lesson and will become a good citizen in the future it is better that he escapes the corrupting experience of prison this time provided that he behaves himself in future. 9 months imprisonment might be a somewhat light sentence for shop-breaking, but not so inadequate that it should be increased on appeal. The question of whether the sentence should be suspended is a little more difficult to decide.

Crown Counsel argued that this amounted to no sentence at all but I'm afraid I can't agree with that. If he meant that some unthinking criminals might consider themselves to have been "let off" if given a suspended sentence I would agree, but I would not agree that this accused has gone entirely unpunished. He has been taken into custody, he has had the unpleasant experience of being taken before the court and of there having to admit his guilt, he now has a criminal record which will tell against him if he ever comes before a court again, and if he comes before a court again within the next two years he knows or should know that he will be called upon to serve 9 months imprisonment besides whatever punishment he receives for the new offence.

The question is whether a suspended sentence is appropriate in the instant case. Unquestionably the magistrate had a discretion to pass a suspended sentence. In some countries, such as England, suspended sentences are invariably given for first offences - except the most serious offences - and quite often for second, third or even fourth offences. There are many reasons for this. Sometimes it is because it is a way of avoiding the most serious overcrowding in prisons, mainly it is because it is recognised that prison, even whilst acting as a deterrent, can also have corrupting influence on the offender, sometimes turning into a hardened criminal a person who, if given a second chance - or even a third or fourth chance - might become a law abiding and useful citizen. The law must temper justice with mercy, it must recognise that its role in sentencing is not only to punish and to deter, but also to try to lead wrongdoers back to the paths of the law-abiding, to try to rehabilitate them, to try to avoid their becoming hardened criminals.

It is to be recognised of course that in different countries different circumstances, different offences require different remedies. In some countries for instance some offences are viewed so seriously that the deterrent element or punitive element of a sentence is the most important. In Botswana for instance, a cattle country, cattle theft was such an offence, and it was not permitted by law to suspend a sentence for cattle theft (similarly for rape). In neighbouring Zambia there was even a mandatory sentence of at least 7 years for any offence of cattle theft. I am not aware that shop-breaking or allied offences are such offences in Fiji, although they are, or should be, quite rightly treated as very serious. Crown Counsel was unable to refer me to any precedent to show that even in appropriate cases, such offences never merit suspended sentences. In fact I believe that probation has been considered an appropriate sentence in at least one case. The one case I was referred to, namely R. v Poasa Tuituva and Josua Tekiteki. Review Case No.6 of 1979 does not assist me very much since the facts of that case are not set out in any detail, the sentences passed were not suspended and presumably there were no reasons why suspended sentences should have been considered.

I conclude therefore, that although as a rule offences of burglary, housebreaking, shop-breaking, etc. will attract custodial sentences of varying degrees of severity there is no real reason why in an appropriate case (perhaps more as an exception than the rule) a suspended sentence should not be considered for a first offence. So the question boils down to whether there was anything in all the circumstances of this case to justify a suspended sentence.

There was nothing particularly bad about the offence as such. I have already referred to the aggravating feature so far as this accused is concerned. With regard to circumstances peculiar to the accused himself, his age at the time of passing sentence was 17 years and 7 months. Thus he was no longer entitled to be treated as a juvenile and could be sentenced as an adult. But he is nevertheless still a youth, and although a period in prison could act as a short sharp lesson, it could also have a traumatic effect that would change his whole life thereafter, probably for the worse. The fact that he is a. student is not necessarily in his favour, since it would be wrong to put students in a special, more favourable category. On the contrary it could be argued that those receiving the benefits of education or higher education should show a greater sense of responsibility and set an example to those not so fortunate. But there is this to be said for the accused. He is at a very crucial stage of his life. His future could be determined by his success or failure in taking his U.E. exams. He seems to have come from a reasonable background, he has a good record at school, and his prospects are good. This offence seems to have been an isolated rather inexplicable fall from grace. Given another chance there seems to be every reason to hope and believe that he will become a good and useful citizen, whereas if he is sent to prison his whole future could be tainted. In the circumstances I cannot say the magistrate exercised his discretion incorrectly and the appeal by the Crown is dismissed.

I might add that I don't think this was a very good choice of case on which to appeal. It may well be that other cases dealt with by the same magistrate and referred to by Crown Counsel are more suitable for appeal.

(Sgd.) G.O.L. Dyke
JUDGE

Lautoka,
7th November, 1979.