Home | Databases | WorldLII | Search | Feedback Fiji Law Reports

Goneyali v State [2001] FJLawRp 66; [2001] 1 FLR 255 (10 August 2001)

ELONI GONEYALI v STATE

High Court Criminal Appeal Jurisdiction

Robbery with violence – appeal against sentence – activation of a suspended sentence for earlier offence of office breaking and larceny - whether harsh and excessive - whether offending and conviction must take place within operational period – Penal Code ss29, 30, 293(1)(b) and 300(a)

The Appellant was convicted for an offence of robbery with violence on his plea of guilty in respect of file no. HAA045/2001. The Magistrate sentenced the Appellant to 18 months imprisonment and activated 12 months of the suspended sentence imposed on the Appellant in respect of file no. HAA044/2001 bringing the total term to 2 years and 6 months. The Appellant appealed against his sentence on the ground that it was harsh and excessive. The Court considered the principles of activating suspended sentences and whether or not it was necessary that the offence and conviction take place within the operational period of the suspended sentence.

Held–(1) The Magistrate had the power to activate the Appellant's suspended sentence, although the operational period had expired, for the latter offence which was committed within the operational period. It was not necessary for the conviction to have taken place within the operational period.

(2) The suspended sentence in respect of file no. HAA044/2001 was right in principle.

(3) The sentence of 18 months for the offence of robbery with violence in respect of file no. HAA045/2001 was not manifestly excessive, nor wrong in principle.

Haroon Khan v State [1980] FamCA 42; (1998) 44 FLR 1 dist.

Other cases referred to in Judgment

Cons R v Okinikan (1992) 14 Cr. App. R(s) 453
Cons R v Carr [2009] EWCA Crim 1669; (1979) 1 Cr. App. R(s) 53
Cons R v Fitton (1989) 11 Cr. App. R(s) 350
Cons R v Taylor (1975) Crim. L.R. 113

Appellant in person
Aliti Bavou for the Respondent

Shameem, J

The Appellant has appealed against a total sentence of 2 years and 6 months imprisonment for an offence of Robbery with Violence and for the activation of a suspended sentence for an offence of Office Breaking Entering and Larceny. I have dealt with both court files together, because his appeal relates to both cases.

On File No. HAA044/2001, the Appellant was charged with the following offence:

Statement of Offence

OFFICE BREAKING ENTERING AND LARCENY: Contrary to Section 300 (a) of the Penal Code Act 17.

Particulars of Offence

ELONI GONEYALI, on the 1st day of November, 1998 at Suva in the Central Division, broke and entered the office of Dr Anand Patel s/o Embalal Patel and stole from therein surgical motor valued $2,600, zeon light source valued $1165.00, video deck valued $350.00, amplifier valued $700.00, two speakers valued $400.00, wrist watch valued $300.00, headphones valued $150.00, x-ray viewer valued $50.00, remote for T/V valued $50.00, sunglass case valued $30.00, four CDs valued $100.00, backpack valued $200.00 to the total value of $6,095.00, the property of said Dr Anand Patel s/o Embalal Patel.

The learned Magistrate on that file sentenced the Appellant to 18 months imprisonment suspended for 2 years. The sentence was imposed on 2nd November 1998.

The Appellant was then charged on File No. HAA045/2001. The charge reads as follows:

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1) (b) of the Penal Code Act 17.

Particulars of Offence

ELONI GONEYALI, JASONI TABANIKAU and one another on the 13th day of April 1999, at Suva in the Central Division, robbed Talab Ali s/o Mohammed Ali of $6.00 cash and immediately before the said robbery did use personal violence on the said Talab Ali s/o Mohammed Ali.

The Appellant pleaded guilty and was sentenced on 4th May 2001 to 18 months imprisonment. The learned Magistrate then activated 12 months of the suspended sentence imposed on Appeal HAA044/2001. The total term to be served is therefore 2 years and 6 months.

The Appellant now appeals against the total sentence on the ground that it is harsh and excessive.

State Counsel opposed the appeal saying that the sentence was right in principle. Very properly, she drew my attention to the decision of the High Court of Labasa in Haroon Khan v The State Criminal Appeal No. 0060 of 1997. In that case, it was held by Fatiaki J that a suspended sentence could only be activated if the commission of the offence, and conviction for the offence, both occurred within the operational period. She submitted that this decision offended the spirit and form of section 30 of the Penal Code, and invited me to differ from it. Clearly, the issue is relevant, because the Appellant had committed the offence of Robbery with Violence within the operational period, but was not convicted of the offence until after the operational period had expired.

Section 29 of the Penal Code provides:

"(1) A court which passes a sentence of imprisonment for a term of not more than two years for an offence, may order that the sentence shall not take effect unless, during a period specified in the order, being not less than one year nor more than three years from the date of the order, the offender commits in Fiji another offence punishable with imprisonment and thereafter a court having power to do so orders under the provisions of section 30 that the original sentence shall take effect; and in this and in sections 30, 31, and 32 "operational period" in relation to a suspended sentence means the period so specified in the order."

Section 30 of the Penal Code provides:

"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 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." (My underlining)

In Haroon Khan v The State (supra), Fatiaki J found that the conviction for the subsequent offence, and the activation of the suspended sentence took place outside the operational period. His Lordship said at page 6:

"Section 30(1) however, makes it clear beyond any doubt that it is the subsequent conviction of the offender for an imprisonable offence and not its commission alone, that is the critical pre-requisite in the exercise of the court's power to activate a suspended sentence, so that, in the absence of a conviction such as might occur under section 44 of the Penal Code, activation of a suspended sentence would not be possible."

His Lordship said that a contrary view would result in grave injustice to the offender because it would serve to suspend the operational period indefinitely.

Section 30 of the Penal Code, is identical to section 23(1) of the Powers of Criminal Courts Act 1973 (U.K.). That section also provides that where an offender is "convicted of an offence committed during the operational period of a suspended sentence", the suspended term may be activated.

Dr D.A. Thomas in his "Principles of Sentencing" 2nd Ed. at page 248, says this of the power to activate:

"The power to deal with the offender in respect of a suspended sentence arises where he is 'convicted of an offence punishable with imprisonment committed during the operational period of a suspended sentence.' Where the offender is convicted during the operational period of an offence committed before the imposition of the suspended sentence, there is no power to enforce sentence, but the sentence may be enforced where the offender is convicted after the expiration of the operational period of an offence committed during the operational period." (My emphasis)

Archbold (2000 Edition at 5-203) agrees. It states:

"The power to activate a suspended" sentence arises when the offender is convicted of an offence punishable with imprisonment committed in Great Britain during the operational period of the sentence. It is not necessary that the conviction take place during the operational period, but there must be a conviction." (my emphasis)

This interpretation would appear to be consistent with the ethos of the suspended sentence, which is to ensure good behaviour for the duration of the operational period. The question of the time of the conviction for the subsequent offence is therefore irrelevant. The most common use of the suspended sentence, is for the sentencing of an offender of previous good character who has committed a serious offence, under circumstances of substantial mitigation. It may also be imposed where unusual circumstances justify a departure from a normal sentence. (R v Okinikan (1992) 14 Cr. App. R(s) 453.)

In the United Kingdom, the Powers of Criminal Courts Act 1973 has been amended by the Criminal Justice Act 1991, which limits the use of the suspended sentence to cases where a custodial term would normally be appropriate, and where there are exceptional circumstances of the case.

However, the principles of activation of the suspended sentence remain the same.

In the looseleaf "Current Sentencing Principles" (Part A13 1A01), Dr Thomas says:

"It is not necessary for the conviction to occur during the operational period, but the court activating the sentence may make some allowance where the latter offence is committed close to the expiration of the operational period."

In R –v- Carr [2009] EWCA Crim 1669; (1979) 1 Cr. App. R(s) 53, the Appellant was sentenced to 12 months imprisonment, suspended for two years, for offences of dishonesty. About 22 months later he committed several offences of handling stolen goods, and was sentenced to two years immediate imprisonment, with full activation of the suspended sentence. The latter conviction was entered after the end of the operational period. The Court of Criminal Appeal held (per Wien J) that because a good deal of the operational period had expired when the offender had committed the latter offences, the activated suspended sentence should be ordered to run concurrently rather than consecutively.

In R –v- Fitton (1989) 11 Cr. App. R(s) 350 Otton J said:

"Parliament intended that a suspended sentence should normally have effect that if a further offence is committed during the operational period, then the whole of the suspended term will be activated. The reason is obvious: the longer the period has been in operation, the more likely that the resolution of a person who is minded to revert to previous criminal activity may weaken and he must expect the full sentence to come into effect if he commits further crime."

In R v Taylor (1975) Crim.L.R. 113 the Appellant was convicted of two counts of cruelty to his infant son, and was sentenced to 18 months imprisonment, and 18 months imprisonment to be served consecutively for offences of burglary for which the Appellant had been put on probation. The Court of Criminal Appeal held that the putting into effect of a suspended sentence was not itself a sentence because the sentence was passed when it was originally imposed. A probation order, by comparison, was made when the offender was subsequently dealt with.

These cases, are based on the premise that it is the offending that must take place within the operational period, and the imposition, and not the activation, of the suspended sentence which is the "sentence." The date of the conviction of the latter offence, and of the enforcement of the suspended sentence, does not need to fall within the operational period. For these reasons, I respectfully differ from the decision of Fatiaki J in Haroon Khan v The State (supra). I therefore find that the learned Magistrate had the power to activate the Appellant's suspended sentence, although the operational period had expired, for the latter offence which was committed within the operational period.

Turning next to the ground that the sentence passed was excessive, I consider that the suspended sentence on File HAA044 of 2001 to be right in principle. The Appellant had one previous conviction for Drunk and Disorderly. The offence was a serious one, but the circumstances justified the imposition of a suspended sentence.

In respect of File No. HAA045/2001, a sentence of 18 months imprisonment for the offence of Robbery with Violence, was not manifestly excessive, nor wrong in principle. The facts of the case show that the Appellant attacked a 63 year old taxi driver and stole $6.00 from him. Given the tariff for Robbery with Violence offences, this is not an excessive or unprincipled sentence. Nor is the total term of 2 years imprisonment disproportionate to the offending, on the totality principle.

For these reasons, this appeal is dismissed.

Appeal dismissed.

Shayne Sorby