IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Case Number: Miscellaneous Case Number: 06 of 2011
(Criminal Case Number: 293 of 2009)

BETWEEN:

ASMA BANO
Applicant

AND:

THE STATE
Respondent

Appearances: Mr. Amrit Sen for the Applicant.
Mr. S. Qica for the State.
Date / Place of Hearing: Wednesday, 16th March, 2011 at Labasa.
Date / Place of Judgment: Thursday, 17th March, 2011 at Labasa.
Judgment of: 	The Hon. Justice Anjala Wati.
RULING
(On Bail Pending Appeal)

The Application

1.	The applicant has made an application by a motion and 2 supporting affidavits filed on the 7th day of March, 2011 seeking bail pending appeal.

2.	The application is opposed by the State.

The Grounds in Support 

3.	The affidavit in support of the applicant states that the she is a first offender and has reconciled with the complainant. The complainant is her brother in law and she had been working for the complainant. She is a divorcee and has 2 daughters who are looked after by her. She was residing with her old mother and a sickly father who had been bedridden by stroke. She was supporting her family. She was charged for damaging property and sentenced to 6 months imprisonment. She contends that by the time her appeal is heard she would have served a considerable time of her sentence. The sentence against her is harsh and excessive in view of the fact that the same was reconcilable.

4.	The second affidavit was by the complainant himself through which he deposed that the applicant is his wife's elder sister and she had been working for him in that she was looking after his twin daughters at the time of the incident. There was no animosity between him and the applicant. He had forgiven her and was ready and willing to reconcile with her before the hearing of the case as she is a family member. He requests for bail so that the family could live together.

The Submissions

5.	Mr. Sen submitted that the offence was a one that was reconcilable and the applicant was unrepresented. The Magistrate should have brought to the attention of the applicant that the offence was reconcilable. He failed to do so. The affidavit of the complainant indicates that he was ready and willing to reconcile before the hearing. If reconciliation was promoted than the proceedings would have been terminated. The accused is also a first offender with the need to support two young children. Mr. Sen added that in another matter of State v. Tomani Tokia - Magistrates Court Criminal Action Number 441/2010, the proceeding was terminated. This case indicates that there must be some consistency in the sentencing and the approach adopted by the magistrate. It was further submitted that the sentence is a short sentence and the records are yet not prepared. The previous files indicates that a lot of time is consumed in preparing the records and if such is the case then the applicant would have spent a considerable time in prison and as such the appeal would be rendered nugatory.

6.	Mr. Qica stated that the damage that was done was of aggravating nature in that the amount involved as per the charge was $800.00 and as per the evidence was $775.00. Although the offence is arguably of personal and private nature, it was at the same time aggravated in nature and that may be the reason why reconciliation was not promoted. The maximum sentence is 2 years and the 6 months imposed is within the sentencing powers of his worship. His worship did consider the relevant factors. He identified the tariff and considered all the necessary factors before passing the 6 months custodial sentence. What the applicants counsel has raised is only arguable and that is not enough to let the applicant on bail.

7.	Mr. Sen in reply stated that the value of the property does not make it aggravated in nature. It was emphasized that the magistrate was dealing with an unrepresented accused and he should have put the statutory provision to the accused. This was unfairly not done and had put the accused to a disadvantage.

The Law

8.	Mr. Sen has only raised the statutory factors to support his ground for bail pending appeal as outlined under s. 17 (3) of the Bail Act 2002.

9.	Section 17 (3) of the Bail Act 2002 outlines the factors which the court must take into account when considering an application for bail pending appeal against conviction or sentence. The factors that the court must look at are:-

(a)	The likelihood of success in the appeal; s. 17 (3) (a) of the Bail Act 2002;
(b)	The likely time before the appeal hearing; s. 17(3) (b) of the Bail Act 2002; 
(c)	The proportion of the original sentence which will have been served by the applicant when the appeal is heard; s. 17(3) (c) of the Bail Act 2002.

10.	It is pertinent to remark that the applicant has been convicted and imposed with a custodial sentence and as such is not entitled to bail as of right: S. 3 (4) (b) of the Bail Act 2002.

The Consideration

11.	I propose to deal with this application for bail pending appeal in light of the factors mandated by the Bail Act only, as no other factor has been pleaded by the applicant.

The Likelihood of Success of Appeal
(s. 17 (3) (a))

12.	The law is well settled when it comes to deciding the likelihood of success of an appeal. The courts in Fiji have indicated that there must be a very high likelihood of success in an appeal before bail will be granted. It is not sufficient that the appeal raises arguable points but the court has to decide that the appeal, on the face of it, has every chance of success. I remind myself that at this stage I do not have to delve into the actual merits of the case.

13.	The applicant was charged for damaging property. The charge states that the applicant on the 11th day of February, 2009 willfully and unlawfully damaged the vehicle registration number CJ 562 valued at $800.00 being the property of one Abdul Hamid Saheb.

14.	The appeal is only against the sentence which is stated in the petition of Appeal as follows:-

1.	The offence was one of private and personal nature and the magistrate ought to have promoted reconciliation as such was his obligation under the law.

2.	There was error in imposing a custodial sentence when the accused was a first offender and upon incorrect application of the cases used by the magistrate in support of the sentence and by failing to follow the principles of sentencing.

3.	The magistrate failed to take into consideration that the accused was a first offender and had two young children and the fact that the damage done was small in nature.

15.	I will very briefly examine the grounds of appeal. The first relates to the magistrate failing to promote reconciliation. I had called for the magistrates court file as the court record was not ready. The minutes of the 10th day of December, 2009 reads as follows:-

" 10/12/09
Pros: 	Sgt. Hassan
Acc: 	P
Ct: 	Full disclosures served on (A). Reconciliation not possible. 26/07/10 for Hg."

16.	On the above date of the 10th day of December, 2009 neither Mr. Sen nor Mr. Qica featured in the proceedings. However the records do indicate that the issue of reconciliation was at the very least put to the parties and an indication given that the same was not possible. His worship has therefore as per the court records not failed to put the statutory provision to the accused. The hearing took place for two days over a span of 3 ½ months approximately. If there was willingness to reconcile, the complainant should have brought this to the attention of the prosecutor or the court as he appeared in court to give evidence. Nowhere in the record is any suggestion, even remotely, by any one that there were chances of reconciliation. The accused was present in court on the 10th day of December, 2009 and the issue of reconciliation was brought up. That would have been sufficient for the accused to advise the court if there was any change of heart before the trial or at any time during the trial that reconciliation was possible. I do not find that this ground has every chance of success.

17.	In passing I must say that s. 163 of the Criminal Procedure Code does not make it mandatory for the magistrate to invoke the provisions of the said section. Reconciliation may be promoted and in my judgment his worship did so. Further, the appropriateness of s. 163 of the Criminal Procedure Code is diminished because the value of the property is an "aggravating" feature: Saimoni Tucila v. The State [1996] 42 FLR 42 at 45.

18.	The next ground is in respect of imposition of custodial sentence in light of the fact that the accused was a first offender and that the sentencing principles were applied incorrectly and the case authorities used in support also used incorrectly.

19.	His worship stated that the maximum sentence for the said offence was 2 years imprisonment and was misdemeanor offence. He stated that there was no set tariff and he cited the case of Lasaro Tikomainiusiladi v. The State Criminal Appeal No. HAA 134 of 2007. Indeed the case states the same. There was no misapplication of the case authority. The case of Saimoni Tucila v. The State [1996] 42 FLR 42 at 45 however indicates that where imprisonment is considered as the appropriate penalty, the term ranges from 3 to 6 months. I note that the final sentence was within the term.

20.	The case of Saimoni Tucila v. State (1996) 42 FLR 42 was used to support the prison sentence for the offence. His worship quoted the excerpt that "a prison sentence for non-violent petty crimes and property offences should be as short as possible, consistent only with the duty to protect the interest of public and to punish and deter the criminal." My examination of the authority does not indicate any misapplication of the same. This case also involved damage worth of similar amount and on appeal the sentence was reduced to 6 months.

21.	Although I find it unusual for a first offender on a misdemeanor offence to be sent to prison, custodial sentences in property offences does exist within the sentencing powers of the magistrate. The custodial term therefore is not wrong in principle. This was a serious case of willful damage as the value property was $800.00 and not $80.00 as contended by Mr. Sen. I can however say that it is arguable that the custodial sentence was harsh and excessive given the facts of the offence and personal circumstances of the applicant.

22.	I have gone through the other cases cited by his worship and I do not find how they were misapplied. No submission was raised in that respect to even support the ground that the case authorities cited were incorrectly applied.

23.	His worship had picked a starting point which was well below the statutory maximum. He used six months as a starting and increased the same for the aggravating feature in that the value of the property damaged was substantial. The increase was for 2 months and then the mitigating factors of the accused being of 32 years of age, a divorcee, unemployed and a first offender was used to lower the sentence by 2 months. The value of the property was correctly used as an aggravating feature. The mitigations were also taken into consideration unlike what is suggested by Mr. Sen. Being a first offender does not entitle one to a reduction in the sentence. It is used to pick up the head sentence or the starting point.

24.	There was nothing in the sentence to indicate that his worship considered the aspect of suspending the sentence. However the entire reading would indicate that his worship was of the mind that a sharp short sentence would both act as a punishment and a deterrent and so the issue of suspended sentence was obviously not a consideration.

25.	On the face of appeal, I do not find that any ground has been demonstrated as having every chance of success. Some grounds may, as I have identified, may be arguable which I leave it to the appellate judge to consider.

26.	I now turn to the next factor.

The likely time before the appeal is heard
(S. 17 (3) (b))

27.	The magistrate's minutes are not extensive and it would take a fairly short time, maybe a day or two to compile the records. A strict direction for compilation would ensure expedition and I intend to give some directions at the end of the matter.

28.	The appeal can be listed for hearing on the 11th day of April, 2011 which is just 24 days away or a little more than that if the presiding judge is heavily committed on the day. I must stress that the appeal may not take long and as such any adjournment from 11th April may not be too long and the matter fixed for hearing in the April-May session.

Proportion of the Sentence that would be served
(S. 17 (3) (c))

29.	The applicant was sentenced on 4th March, 2011. By the time the appeal is heard, she would have served only 38 days which is 1 month 8 days out of the 6 months imprisonment. She would have only served 1/6 of her sentence. If she was to be given remission for good behavior, she would still serve a little more than a quarter of her sentence. This term in prison until the appeal is heard, in my calculation, will not render the appeal nugatory and thus the principles of natural justice cannot be said to be offended.

30.	I have considered each factor separately and on consideration of each I find that the bail pending appeal should be refused at this stage.

Final Orders/Directions

31.	The application for bail pending appeal is dismissed.

32.	The court record must be prepared before the 11th day of April, 2011. The Deputy Registrar to supervise the preparation of record and ensure that the same is ready by 11th April, 2011.

33.	The matter is listed for hearing on the 11th day of April, 2011 before a judge of the criminal division. Parties must expect some changes on this day in that the matter may be re-fixed for hearing within the session if the date does not suit the presiding judge.

34.	Orders and directions accordingly.

ANJALA WATI
Judge
17.03.2011
At Labasa