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Talim v The State [2003] FJHC 214; HAM0036D.2003S (24 September 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS ACTION NO: HAM 036 OF 2003S

Between:

MOHAMMED TALIM
s/o Gani Mohammed;
ASGAR ALI
s/o Gulam Hussain
Applicants

And:

THE STATE
Respondent

Mr. E. Veretawatini for Applicants
Mr. N. Lajendra for State

Hearing: 23rd September 2003
Ruling: 24th September 2003

RULING

This is an application for bail pending appeal. The Applicants were charged as follows:

Statement of Offence

SHED BREAKING ENTERING AND LARCENY: Contrary to Section 300(a) of the Penal Code, Cap. 17.

Particulars of Offence

MOHAMMED TALIM son of Gani Mohammed and ASGAR ALI son of Gulam Hussain between the 16th day and 18th day of July 2003 at Nasoni, Tailevu in the Central Division broke and entered into the shed of one GANI MOHAMMED son of Mohammed Mahaboob Khan and stole from therein 1-40HP boat engine brand Johnson valued at $5,000.00, 1-40HP boat engine brand Marina Mercury valued $5,000.00, 2 benzine tank valued at $300.00 and 2-fitting hose valued at $150.00 all to the total value of $10,150.00 the property of GANI MOHAMMED son of Mahaboob Khan.

They were convicted and sentenced on the 19th of September 2003. From the sentencing remarks of the learned Magistrate, it appears that the facts were that on the 18th July 2003, one Mr. Gani Mohammed found missing from his shed two boat engines, two benzine tanks and two fitting hose valued at $10,150. He reported the matter to the police and the Applicants were apprehended through the registration number of the vehicle used in the theft. The Applicants agreed to these facts. The 1st Applicant said that he was 50 years old and a married cane farm labourer with 3 children. The complainant was his own father. They had since reconciled. He was a first offender.

The 2nd Applicant said that he was 37 years old and also a married cane farm labourer with 3 children. The 1st Applicant is his brother-in-law. He is a first offender.

The learned Magistrate said that the offence was serious and premeditated. The Applicants had stolen in the dead of night from their own relative. He said that the offence was prevalent and that the court had a duty to protect the community from such offending. He imposed 9 months imprisonment for each Applicant. The Applicants have appealed against sentence on the ground that the term should have been suspended.

The principles of bail pending appeal are well-settled in the common law and are now enacted in section 17(3) of the Bail Act 2003. That section provides:

“When a court is considering the granting of bail to a person who has appealed against conviction or sentence the court must take into account –

(a) the likelihood of success in the appeal;

(b) the likely time before the appeal hearing;

(c) the proportion of the original sentence which will have been served by the applicant when the appeal is heard.”

In this case counsel submitted that the appeal was bound to fail. The State disagrees, saying that the sentence of 9 months imprisonment fell within the tariff for breaking and entering offences and that there were no exceptional circumstances to justify the grant of bail.

As a general sentencing principle, the expression of remorse, previous good character and compensation or reparation to the victim, are factors which might lead the court to impose a non-custodial sentence. However there are some types of offending which must lead to custodial sentences no matter how compelling the mitigation. Without a perusal of the full court record, I am unable to conclude that this was clearly a case in respect of which the learned Magistrate should have imposed a non-custodial sentence. Indeed the value of the goods stolen would indicate otherwise. Although counsel has an arguable appeal, I cannot conclude that it is bound to succeed.

Further the record must now be in the High Court before the 17th of October 2003. A hearing date will then be set for November. By that time the Applicants will have served less than 2 months of their 9 month terms. This is not an unconscionably long period of time.

In all the circumstances, the Applicants have not persuaded me that bail pending appeal should be granted.

This application is dismissed.

Nazhat Shameem
JUDGE

At Suva
24th September 2003