IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. No: HAA0083 & 110 of 2005

Between:

FILIPE CAGI
Appellant

And:

THE STATE
Respondent

Hearing: 31st August 2005
Judgment: 2nd September 2005

Counsel: Mr. S. Valenitabua for Appellant
Mr. A. Rayawa for State

JUDGMENT

The Appellant appeals against the activation of a 12 month suspended sentence. The suspended sentence was imposed on him by the Nadi Magistrates’ Court in June 2004. The activation was imposed after the conviction of the Appellant on a charge of making a false declaration to obtain a passport, to which he pleaded guilty on the 17th of March 2005. He was sentenced to 12 months imprisonment in addition to the activation of the 12 month suspended term. In effect, he is serving a 2 year term of imprisonment.

The original charge was one of robbery with violence. The charge read as follows:

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293 of the Penal Code Cap 17.

Particulars of Offence

FILIPE CAGI and another, on the 21st day of December, 1992 at Nadi in the Western Division, robbed PARMA NAND s/o Govind Sami of taxi registration number BR 379 valued at $9,000.00 and before the time of such robbery used personal violence to the said PARMA NAND s/o Govind Sami.

Although the offence was committed in 1992, the Appellant absconded to New Zealand after the charge was laid but before the matter was called in court. There is no suggestion on the record that he entered New Zealand unlawfully. However, he remained there for 6 years. He was then deported from New Zealand but a further 6 years lapsed before the law caught up with him. The charge was eventually laid in court on the 7th of June 2004, in Nadi.

The Appellant pleaded guilty on the same day. The facts were that on the 21st of December 1992, at Nadi, he with another man hired a taxi from Nadi town and told the taxi driver to drive to Yako. At Korovuto the Appellant took out a kitchen knife and held it to the taxi driver’s neck. His accomplice pushed the driver out of the taxi. The driver resisted but injured his hand in the process. The Appellant and his companion pushed the driver out of the taxi and drove off towards Suva. On the highway, the Appellant, who was driving, was unable to control the vehicle and caused it to tumble down a slope. They ran away. They were later found in Suva, and arrested. Under caution they both admitted the offence. The taxi was valued at $9,000.

A medical report on the file shows that the taxi driver had three lacerations on his fingers as a result of the attack.

In mitigation, the Appellant said that this was an old case, and he was now 34 years old. He had lived in New Zealand for 6 years. He expressed remorse and said that the driver was not hurt.

On the 10th of June 2004, the learned Magistrate reduced the charge to one of robbery on the ground that there was “no real violence.” There were no previous convictions. The learned Magistrate then sentenced him to 12 months imprisonment, suspended for 2 years.

During the operational period of the suspended sentence, on the 11th of March 2005, he was charged with making a false declaration to obtain a passport. The charge read as follows:

Statement of Offence

MAKING FALSE DECLARATION TO OBTAIN PASSPORT: Contrary to Section 312 of the Penal Code Act 17.

Particulars of Offence

FILISE CAGI KOROI on the 16th day of December 2004 at Suva in the Central Division, made false declaration which to his knowledge was untrue for the purpose of procuring a passport for himself.

The matter was called in the Suva Magistrates’ Court on the 17th of March 2005. He waived his right to legal representation and pleaded guilty. The facts were that in July 2004, the Appellant was deported from New Zealand after he assaulted his stepson. He wanted to return to New Zealand. He obtained the birth certificate and marriage certificate of his cousin, one Viliame Peninivolavola. He then filled in a passport application form in the name of his cousin, pasted his own photograph on it and had the form certified by one Alumita Lutu, a typist of the Immigration Department. He then lodged the application form on the 8th of February 2005. The Immigration Department discovered that a new passport had already been issued in the name of Viliame Peninivolavola, when Viliame Peninivolavola himself applied for a passport in order to travel to Kuwait. He called the Appellant to the Immigration Office. The Appellant admitted what he had done.

The matter was reported to the police. The Appellant was interviewed under caution. He admitted the offence, saying that he made the false application knowing that he would not be allowed to re-enter New Zealand under his old passport.

These facts were admitted. The Appellant also admitted three previous convictions. However a perusal of the record of previous convictions shows that his only conviction was for robbery with violence in June 2004, in Nadi.

In mitigation, he said that he was 34 years old, and was married but separated with one child. He expressed remorse. He was convicted as charged. The learned Magistrate then called for the Nadi file (497/04) to consider activation of the suspended sentence. On the 31st of March 2005, the Appellant was asked to show cause why his suspended sentence should not be activated. He gave evidence on oath. He said he was charged in 1992 and sentenced for robbery in 2004. He said he was out of work and wanted to go back to New Zealand. His partner was running a business in New Zealand. He said that he was told of his suspended sentence but had forgotten about it. He said he wanted to support his family, that he was the sole breadwinner and that he sold yaqona and handicrafts to earn money.

Sentence was delivered on the 14th of April 2004. The learned Magistrate said that he had disregarded the leniency shown to him by the courts, and said that there was no valid reason to justify non-activation of the suspended sentence. She ordered activation of the 12 month term in full. In relation to the offence of obtaining a passport with a false declaration, she chose a starting point of 18 months imprisonment, which she reduced to 12 months to reflect the guilty plea and the period in remand. She sentenced him to 12 months imprisonment to be served consecutive to the activated suspended sentence.

The Appellant originally appealed against the sentence imposed on the ground of non-disclosure of the prosecution case and the wrongful activation of the suspended sentence. He lodged his appeal in person. However he is now represented by counsel. Counsel informed me that they would abandon all grounds of appeal, and retain only the ground of appeal against the activation of the suspended sentence. His submissions are that the learned Magistrate should not have activated the sentence at all because the subsequent offence is trivial, but if I find against the Appellant on that point, he submits that the learned Magistrate should have activated the sentence in part only. He made written and oral submissions. The State opposes the appeal.

Citing the cases of Moylan [1970] 1 QB 143, Saunders [1970] 54 Cr. App. R. 247 and Stevens (1971) 5 Cr. App. R. 154, counsel for the Appellant said that the principles relevant to activation of suspended sentences are, firstly, that the sentence need not be activated where the subsequent offending is trivial and of a different category to the original offence, and that secondly, if it is activated, the court should consider partial activation to reflect the particular circumstances of the case.

State counsel submitted that the Appellant, who had evaded justice for the 12 years from 1992 to 2004, was the author of his own misfortune. He further said that both the 12 month sentence for the substantive offence, and the activation of the suspended sentence were correct in principle. He submitted that the original charge of robbery with violence was reduced to robbery in error because there was evidence of actual violence inflicted and that the Appellant was fortunate to receive the suspended sentence which was well below the tariff for robbery cases.

The appeal

The sole ground of appeal is the activation of the suspended sentence. Section 30 of the Penal Code provides:

(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 provisions of section 31 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 of subsection (1) of section 29 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) 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 sentence 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 imprisonment passed on the offender by that or any other court.

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

Whether the court chooses option (a), (b), (c) or (d) is a discretionary matter, depending on the circumstances of every case, and having heard the accused “show cause.” Jurisprudence has developed around the circumstances which might suggest that activation is unjust. Nevertheless the provisions of section 30(1)(d) make it clear that the court should generally order activation, unless it is unjust to do so in view of circumstances which have arisen since the suspended sentence has passed.

The proper approach of the courts to offences committed during the operational period is to first address the subsequent offence. Thereafter, in deciding whether or not to activate the suspended sentence, the court may have regard to the facts and character of the subsequent offence (R v. Griffiths [1969] 1 WLR 896). Reasons for non-activation might be the triviality of the subsequent offence but the fact that the subsequent offence falls into a different category to the original offence, is not sufficient reason for non-activation. (Saunders supra).

The court should consider the circumstances of both sets of offending to decide whether to activate or not. Generally, activated sentences should run consecutive to the sentence for the subsequent offence and the totality must not be excessive (Bocskei (1970) 56 Cr. App. R.).

The regime of suspended sentences comparable to section 30 of our Penal Code, has now been repealed in England, to be replaced by sections 189 to 192 of the Criminal Justice Act 2003. Orders for suspended sentences now include orders for unpaid work, or programmes or curfews, or drug habilitation activities or other orders. However, the cases cited above still apply to the old regime, which continues to be the law in Fiji.

Applying those principles in this case, I consider that the subsequent offence was not trivial. It was a most serious offence of fraud and dishonesty. The offence of misrepresenting the nature of the passport application to the Immigration Department is one that requires careful planning and pre-meditation. In this case the offence was solely motivated by self-interest. The fact that it was not an offence of violence is irrelevant. The Appellant committed another serious offence within the operational period of his suspended sentence. His excuse that he had forgotten that he was on a suspended sentence, does him no credit at all.

Similarly the circumstances of the offending in the original case were also serious. The Appellant was fortunate to have his charge reduced, and to receive only a suspended sentence. In that case, the victim received injuries, a weapon was used, a car was stolen and the Appellant acted in concert with another. A starting point of 5 years imprisonment might have been justified. Indeed the Appellant, then a first offender should have received a sentence between 4 to 5 years imprisonment. The fact that he was sentenced 12 years after the event might have led to some reduction, although as State counsel correctly pointed out, the Appellant was responsible for the delay himself. The court should have been unsympathetic to his submission on delay. In the circumstances he was fortunate to escape a custodial sentence.

The fact that he then re-offended so quickly after that sentence was passed was evidence of the Appellant’s lack of appreciation of his own fortune in that regard. It is not at all surprising that the learned Magistrate ordered activation of the suspended sentence in full. There were no reasons to justify partial disqualification. The Appellant re-offended only 6 months after the imposition of his suspended term. If he had re-offended towards the tail end of it, there might have been grounds to justify partial disqualification.

This appeal is therefore dismissed. The order for activation was correct in principle. The total sentence does reflect the totality of the offending and is not manifestly excessive.

Nazhat Shameem
JUDGE

At Suva
2nd September 2005