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Lal v State [2008] FJHC 2; HAM003D.08S (18 January 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Misc. Case No: HAM 003 of 2008

Between:

SURUJ LAL
Applicant

And:

THE STATE
Respondent

Hearing: 17th January 2008
Ruling: 18th January 2008

Counsel: Mr. D. Prasad for Applicant
Ms P. Madanavosa for State

BAIL RULING

The Applicant was convicted of indecently assaulting Paulini Adicokia, a 14 year old girl, on the 16th of November 2007. He applies for bail pending appeal. He was sentenced to 9 months imprisonment.

The court record is not available but the facts are disclosed in the Appellant’s affidavit and its annexures. They are that on the 16th of December 2007, the Applicant asked the complainant to play cards with him. He approached her, hugged her, rubbed her breast with his fingers then squeezed it. She ran away. He was interviewed under caution and denied the offence. He was charged and brought to court. He is 34 years old, married and has two children. The complainant is his wife’s cousin, and lived with them, but as a result of the incident has gone to her village. The Appellant is a taxi driver.

The learned Magistrate, in sentencing the Applicant identified the tariff for the offence as 1 to 4 years. The indecent assault of children would indicate a higher starting point. He picked a starting point of 3 years imprisonment and after adjusting for aggravating and mitigating circumstances, arrived at 9 months imprisonment.

The petition of appeal proposes to argue that the Appellant’s plea of guilty was equivocal because the learned Magistrate had failed to properly explain the charge to the Appellant and had failed to tell him that the charge carried a maximum sentence of 5 years imprisonment. As a result, the Appellant will argue that his plea of guilty was equivocal.

The grounds for bail are that the appeal is clearly meritorious, and that a substantial portion of the term of imprisonment will be served when the appeal is heard. In his affidavit, he says that he was a first offender and scared of the court proceedings. He says he needs bail to support his unemployed wife and two children. He has been in custody for three weeks.

The State opposes bail, saying that the Appellant had waived his right to counsel, that the sentence was fair and principle and that there was no obvious merit in the appeal. State counsel relied on the affidavit of the Appellant’s wife Raijieli Bale. She states that she is employed by the Kelton Group as the Group Finance Manager and that she financially supports the family. She states further that if the Appellant is granted bail, she fears for the safety of her children. The Appellant filed a further affidavit saying that his brother had supplied the information in his affidavit and that he had not pay much attention to the contents before he signed. He agreed that his wife was employed and that she shared the family expenses.

It is impossible to assess whether or not this appeal is likely to succeed because the court record is not available. The sentencing remarks suggest that the Appellant was told of his rights to counsel and that he waived it. Whether or not such waiver was informed, is a question to be determined on appeal, and after a study of the court record. On the papers before me, I cannot say that this appeal is bound to succeed. As for the length of the sentence, the record is unlikely to be longer than 3 pages. It must be in the High Court within 28 days of the filing of the petition of appeal. The petition in the affidavit is undated and unsigned but I assume the original has been filed. After receipt of the record, a date is usually set within a month for hearing. It is unlikely that the Appellant would have served more than 3 months imprisonment when his appeal is heard. This is not a substantial portion of his term of imprisonment.

I find no exceptional grounds to justify the grant of bail pending appeal. Bail is refused.

Nazhat Shameem
JUDGE

At Suva
18th January 2008