IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO: HAM 178 OF 2015

BETWEEN:

KRISHNA MANI PILLAY
Applicant

AND:

STATE
Respondent

Counsel : Mr. Naidu for the Applicant
 Mr.A. Singh for the Respondent
 
Date of Hearing : 19thNovember, 2015
Date of Ruling : 26th November, 2015

RULING ON BAIL PENDING APPEAL

1. The Applicant applies for bail pending appeal.

2. Applicant was charged with Theft contrary to Section 291(1) of the Crimes Decree No. 44 of 2009in the Magistrates Court of Fiji at Nadi.

3. He pleaded guilty to the charge and was sentenced on 11th of September, 2015, to two years imprisonment with non-parole period of 16 months.

4. Being aggrieved by the sentence imposed, the Applicant filed an appeal in this Court on 7thof October, 2015.

Law Relating to Bail Pending Appeal
Bail Act

5. The presumption in favour of the granting of bail is displaced where the person has been convicted and has appealed against the conviction [Section 3 (4) (b)]

6. Section 17 (3) of the Bail Act reads as follows;

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.

Case Law

7. It has been clearly laid down in a series of cases that bail pending appeal will only be granted in exceptional circumstances. 

8. In Ratu Jope Seniloli and others v The State (Crim App. No. AAU0041/04S. High Court Cr. App No.002S/003, 23 August 2004 said that:

"It has been a rule of practice for many years that where an Accused person has been tried, convicted of an offence and sentenced to a term of imprisonment, only in exceptional circumstances will be released on bail during the pendency of an appeal. This is still the rule in Fiji. The mere fact an appeal is brought can never itself be such an exceptional circumstance."

9. Distinct approach to be taken by a Court in a bail pending appeal application was succinctly described in Amina Koya v. State in following terms: 

"I have borne in mind the fundamental difference between a bail applicant waiting Trial and one who has been convicted and sentenced to jail by a court of competent jurisdiction. In the former the applicant is innocent in the eyes of the law until proven guilty. In respect of the latter he or she remains guilty until such time as a higher court overturns, if at all, the conviction. It therefore follows that a convicted person carries a higher burden of satisfying the court that the interests of justice require that bail be granted pending appeal."

10. Relevant case law indicates that even after the Bail Act coming into force, bail pending appeal can be granted only where exceptional circumstances(even though those circumstances do not fall under the triple criteria given in Section 17 (3) of the Bail Act) that would justify granting of bail are present,.

11. The Court of Appeal in Balaggan v State (2102) FJCA 100; AAU 48-2012 (3 December 2102) noted that even if the application is not brought through Section 17(3) of the Bail Act, there may be exceptional circumstances to justify a grant of bail pending appeal. 

12. In Reddy v. State [2005] Justice Calanchini, President of the Court of Appeal has discussed the scope of Section 17(3) of the Bail Act in a comprehensive manner.

"Once it has been accepted that under the Bill Act there is no presumption in favour of bail for a convicted person appealing against conviction and/or sentence, it is necessary to consider the factors that are relevant to the exercise of the discretion. In the first instance these are set out in section 17 (3) of the Bail Act which states: " 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 appellant when the appeal is heard."

Although Section 17 (3) imposes an obligation on the Court to take into account the three matters listed, the Section does not preclude a Court from taking into account any other matter which it considers to be relevant to the application. It has been well established by cases decided in Fiji that bail pending appeal should only be granted where there are exceptional circumstances. 

In Apisai Vuniyayawa Tora & Others –V- R (1978) 24 FLR 28, the Court of Appeal emphasized the overriding importance of the exceptional circumstances requirement:

"It has been a rule of practice for many years that where an accused person has been tried and convicted of an offence and sentenced to a term of imprisonment, only in exceptional circumstances will he be released on bail during the pending of an appeal."

The requirement that an applicant establish exceptional circumstances is significant in two ways. First, exceptional circumstances may be viewed as a matter to be considered in addition to the three factors listed in Section 17 (3) of the Bail Act. Thus, even if an applicant does not bring his application within Section 17 (3), there may be exceptional circumstances which may be sufficient to justify a grant of bail pending appeal. Secondly, exceptional circumstances should be viewed as a factor for the Court to consider when determining the chances of success. 

This second aspect of exceptional circumstances was discussed by Ward P in RatuJope Seniloli & Others –V- The State (Unreported Criminal Appeal No. 41 of 2004 delivered on 23rd August 2004) at page 4:

"The likelihood of success has always been a factor the Court has considered in applications for bail pending appeal and Section 17 (3) now enacts that requirement. However it gives no indication that there has been any change in the manner in which the Court determines the question and the Courts in Fiji have long required a very high likelihood of success. It is not sufficient that the appeal raises arguable points and it is not for the single Judge on an application for bail pending appeal to delve into the actual merits of the appeal. That as was pointed out in Koya'scase (Koya –V- The State unreported AAU 11 of 1996 by Tikaram P) is the function of the full Court after hearing full argument and with the advantage of having the trial record before it."

 It follows that the long standing requirement that bail pending appeal will only be granted in exceptional circumstances is the reason why "the chances of the appeal succeeding" factor in Section 17 (3) has been interpreted by this Court to mean a very high likelihood of success."

Grounds of Appeal

13. The Applicant has appealed the sentence on following grounds:

I. The Learned Magistrate misdirected himself as to the application of Section 4 (2) (j) of the Sentencing and Penalties Decree 2009 in failing to suspend the sentence of the Accused.

II. That the Learned Magistrate erred in law and in fact by failing to give sufficient weight to the Accused's character and the mitigating factors in imposing a custodial sentencing that the Accused should have been considered a first offender.

III. That the Learned Magistrate failed to take into account that the Accused had entered into an agreement for restitution of the property acceptable to the complainant.

IV. That the Learned Magistrate took into account matters irrelevant and prejudicial to the accused in arriving at the sentence.

V. That the Learned Magistrate erred in law and in fact in imposing a custodial sentence.

Analysis
[a]. High Likelihood of Success in the Appeal

14. I now proceed to examine whether the Applicant's appeal is one having high likelihood of success.

15. In his first and fifth grounds of appeal, the Applicant contends that the Learned Magistrate misdirected himself as to the application of Section 4(2)(i) of the Sentencing and Penalties Decree, 2009 in failing to suspend the sentence. 

16. Section 26of the Sentencing and Penalties Decree, 2009provides that:

26. — (1) On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or part of the sentence, if it is satisfied that it is appropriate to do so in the circumstances.

(2) A court may only make an order suspending a sentence of imprisonment if the period of imprisonment imposed, or the aggregate period of imprisonment where the offender is sentenced in the proceeding for more than one offence,—

 (a) does not exceed 3 years in the case of the High Court; or 

(b) does not exceed 2 years in the case of the Magistrate's Court.

17. The term of imprisonment imposed by the Learned Magistrate on the Applicant is for a term of two years. Hence, he had discretion to suspend the sentence if he is satisfied that it is appropriate for him to do so in the circumstances of the case. The Learned Magistrate in his discretion opted not to suspend the sentence. 

18. The Learned Magistrate's failure to suspend the sentence can be impugned in appeal only if he had failed to exercise his discretion judicially. In exercising his discretion, the Learned Magistrate is required to follow the guidelines set by the Sentencing and Penalties Decree 2009 and the Case Law pertaining to suspended sentences.

19. The sentencing guidelines are provided for in Section 4 of the Sentencing and Penalties Decree 2009. The sentencing Magistrate is supposed to take those guidelines into consideration when imposing the sentence. Sentence passed in the lower Court should only be varied on appeal where the Court had erred in principle.

20. In the second ground of appeal, the Applicant contends that the Learned Magistrate had failed to consider his character [4(2)(i)]and his early guilty plea [4(2)(f)]when he imposed a custodial sentence. 

21. It appears that the Learned Magistrate in fact considered Applicant's character when he cited Justice Shameem's dictain State v. Sakuisa Bola HAC 38 of 2005 where it was stated: 

"In breach of trust cases, comparably less weight is put on good character, because only people of good character are given positions of trust and responsibility. It is the breach of trust which is the harm done in these offences"

22. In his third ground of appeal the Applicant states that the Learned Magistrate failed to take into account the agreement for restitution entered between the complainant and the Applicant 4[(2)(h)]. 

23. In paragraph 8 of the sentencing order, the Learned Magistrate has mentioned all the mitigating circumstances submitted by the Counsel for the Applicant. In paragraph 20, he had given a discount of 16 months for mitigating circumstances other than early guilty plea. In paragraph 21, he had given further discount of 8 months "considering other mitigating and personal circumstances". 

24. In the mitigation submission placed before the Learned Magistrate, nothing is stated about the so called agreement for restitution. The letter produced before the Learned Magistrate only states that 'the balance of claim done by Ali Amzad Transport will now be deducted from his pay'. The letter issued by a director of the company, AATS Investments, had confirmed that only ¼ of the money claimed by Ali Amzad Transport (complainant) had been paid. Those are the only material placed before the Learned Magistrate by the time he imposed the sentence. 

25. The Learned Magistrate had reasons to conclude that the Applicant had not shown genuine remorse and had failed to make full restitution. 

26. Even in a case where the accused is the first offender who pleaded guilty, a sentence could be suspended only if he had made full restitution before the sentencing hearing thereby manifesting his genuine remorse. 

27. The criteria that a sentencing Court should adopt in suspending a sentence was discussed in State v. Raymond Roberts HAA 0053 of 2003 S by Justice Shameem in the following terms:

"The principles that emerge from these cases are that a custodial sentence is inevitable where the accused pleads not guilty and makes no attempt at genuine restitution. Where there is a plea of guilty, a custodial sentence may still be inevitable where there is a bad breach of trust, the money stolen is high in value and the accused shows no remorse or attempt at reparation. However, where the accused is a first offender, pleads guilty and has made full reparation in advance of the sentencing hearing (thus showing genuine remorse rather than a calculated attempt to escape a custodial sentence) a suspended sentence may not be wrong in principle. Much depends on the personal circumstances of the offender, and the attitude of the victim"

Breach of Trust

28. In this case, there was an employer-employee relationship between the Applicant and the complainant. There was a gross breach of trust when the Applicant committed the theft. Non-payment of salary is not a justifiable reason to steal from the employer.

 Value of Property Stolen

29. The value of the items stolen is high. According to the summary of facts admitted, items amounting to $ 21,800 had been stolen of which only $ 4000 worth of items had been recovered. The Applicant had tendered an unequivocal plea of guilty. He had been represented by a Counsel at the Magistracy at that time. Summary of facts had been admitted by the Applicant. He has not appealed his conviction. In appeal he can't dispute the value of items stolen. 

Restitution 

30. In this case, the Applicant had made attempts at restitution when he was faced with a risk of imprisonment. Further full restitution has not taken place. At the time of sentencing, only ¼th of the value of stolen property had been paid to the complainant. 

31. Justice Shameem, following the principles enunciated by Justice Gates (as he then was) in State v Mahendra Prasad HAC 009.02 S, stated that:

"Where there is an earnest and sincere wish to effect reparation to the victim and where that wish is prompt and an expression of remorse, a suspended sentence is not wrong in principle".

32. In making restitution, the Applicant was buying himself out of trouble. His remorse was not genuine.

33. Applicant in his fourth ground of appeal states that the Learned Magistrate took into account matters irrelevant and prejudicial to the accused in arriving at the sentence. However, Applicant has failed to mention specifically what those grounds were. 

34. The Applicant has failed to satisfy this court that his appeal has a very high likelihood of success.

[b]. The Likely Time before the Appeal Hearing

35. Applicant was sentenced on 11th September, 2015. He filed his appeal on 06thof October 2015. The State has filed objections and date for hearing has already been fixed for 26th November, 2015. 

[c]. The proportion of the original sentence which will have been served by the Applicant when the Appeal is heard

36. The Applicant has served only 2 months out of 24 months. Appeal is already fixed for hearing. The term which will have been served by the Applicant when the appeal is heard is not considerable.

37. The affidavit filed by the wife of the Applicant only reiterates what was put before the Learned Magistrate for mitigation. Those are not exceptional circumstances. 

Order

38. The Applicant has failed to satisfy any of the grounds provided in Section 17(3) of the Bail Act or any other ground that can be considered as 'exceptional'. Therefore application for bail pending appeal is dismissed. 

Aruna Aluthge
Judge

At Lautoka
26th November 2015

Solicitors: Pillai, Naidu & Associates for Applicant
Office of the Director of Public Prosecution for Respondent