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Prasad v The State [2004] FJHC 177; HAM0004D.2004S (12 February 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS CASE NO: HAM 004/04

Between:

MAHESH PRASAD
Applicant

And:

THE STATE
Respondent

Hearing: 12th February 2004
Ruling: 12th February 2004

Counsel: Ms S. Devan for Applicant
Mr. N. Lajendra for Respondent

RULING

The Applicant applies for bail pending sentence. He relies on the affidavit of Mahendra Prasad (his father) filed on the 10th of February 2004.

The facts available are that he was charged on one count of larceny by servant. He is alleged to have stolen $14,803.00 from New India Assurance Company Ltd. The charge was first laid on 30th June 2003. He pleaded not guilty and a hearing date was set. On the second hearing date he pleaded guilty and told the court he wished to pay back the money stolen. The learned Magistrate adjourned the matter to the 22nd of December 2003 to allow him to find the money. He had already paid back $6000.00 of the total. He did not appear on the 22nd of December and a bench warrant was issued. It was executed on the 6th of February and he remains in custody until 20th February when he will be sentenced.

Mahendra Prasad says of his son’s failure to appear:

“I verily believe that the reason for my son not appearing on the 22nd of December 2003 was that he was unable to make arrangements for the full sum and was as such late to the court, which resulted in a bench warrant being issued against him.”

Counsel submitted that bail should be granted because his young family is suffering as a result of his incarceration, he has been offered a job at Carpenters to commence on 9th February, he has now fully repaid the money stolen and he is likely to be given a suspended sentence.

State counsel opposes bail. He says that restitution was only done when the court gave him time to pay, that there was no genuine remorse, that the Applicant failed to appear in court whilst on bail and has lost his right to bail and that a suspended sentence is not the likely sentence in the circumstances of this case.

Although persons awaiting trial have a right to bail, the Applicant is not awaiting trial. He has pleaded guilty and is now awaiting sentence. Further, he has been shown to have already been in breach of his bail conditions. He failed to appear in court on the 22nd of December, and although his father’s explanation may explain why he was late on the 22nd of December, it does not explain why he did not appear voluntarily in court on the 22nd of December or any other day until he was arrested in February 2004. Finally, a suspended sentence is by no means the likely sentence in this case.

The High Court has, in the past upheld or imposed suspended sentences for fraud cases in those exceptional cases where the accused was a first offender, pleaded guilty and where he reimbursed the complainant in a genuine attempt at reparation. A suspended sentence is not appropriate where the accused appears to be buying his way out of jail, and only reimburses the victim because he knows he will otherwise be given a custodial sentence. A court should not adjourn sentencing for the purpose of reimbursement, because, as has often been said, the court is not a debt-collecting agency and if the accused’s remorse was genuine, he would not need either prompting or time to effect full reparation (State v. Raymond Roberts HAA0053 of 2003S.)

In all the circumstances I consider that bail should not be granted. This application is dismissed.

Nazhat Shameem
JUDGE

At Suva
12th February 2004