Biraki v Reginam [1979] FijiLawRp 12; [1979] 25 FLR 212 (8 June 1979)

[1979] 25 FLR 212

SUPREME COURT OF FIJI

Appellate Jurisdiction

MOSESE BIRAKI

v

REGINAM

Williams, J.

8 June 1979]

Appellant – In Person
D. Williams for Respondent.

Criminal Law – Principles regarding suspended sentence

Appellant had been convicted of Shop Breaking and Larceny. He had been given a suspended sentence which the appellate Judge found was too lenient. The Court citing authority, made the following observations about suspending sentences–

1. Magistrates should not impose suspended sentences on those who have already served terms of imprisonment.

2. The purpose of a suspended sentence is to avoid sending to prison an offender who has not yet been to prison, although on the face of it his crime merits imprisonment.

3. It is well established on English authorities that generally speaking a suspended sentence should be activated, otherwise the public will regard them as of no more consequence than an unconditional discharge.

4. That the subsequent offence is of a completely apparent kind from the suspended sentence is not a good reason for not activating the suspended sentence.

5. An activated sentence should usually be consecutive to any current sentence.

Cases Referred to:

R v Katonaisa Tuivotua Cr App 86/76.
R v Vijay Singh & Raman Cr App 50/77.
R v Chet Ram Cr App 100/77
R v Abdul Shorab Cr App 115, 117, 118, 119/77.

WILLIAMS J.:

Judgment

The appellant was convicted on his own plea of guilty for shop-breaking and larceny.

The crime was committed on 27.3.79 and the property stolen was quite considerable including 2,300 cigarettes, 2 cartons of corned beef, 1 carton of corned mutton, ghee and sugar, worth $673. It seems that the accused was arrested on 29.3.79 and appeared in court on 30.3.79. In the two days between the theft and his arrest the accused had disposed of all the property except 490 cigarettes and carton of corned beef.

Ten previous convictions were admitted by the accused and the learned magistrate sentenced him to two years' imprisonment. The accused has appealed against that sentence. His record commencing on 7.1.74 includes five convictions for larceny, shop-breaking and larceny larceny from a dwelling house and two for assault occasioning actual bodily harm.