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Chand v The State [2004] FJHC 214; HAM0036.2004 (16 June 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO.: HAM0036 OF 2004

BETWEEN:

ROMIT ADWIN CHAND
Applicant

AND:

STATE
Respondent

Date of Hearing: 16th June, 2004
Date of Ruling: 16th June, 2004

Counsel for the Applicant – Mr. Suruj Sharma
Counsel for the State – Mr. Davendra Prasad

EX TEMPORE RULING ON BAIL

The applicant applies for bail pending appeal. Under the provisions of Section 17 of the Bail Act 2002 the relevant principles are:

1. The likelihood of success in the appeal.
2. The likely time before the appeal hearing.
3. The proportion of the original sentence which will have been served by the applicant when the appeal is heard.
   

In two recent decisions I have had an opportunity of considering more fully the law relating to bail pending appeal. Counsel for the applicant has referred me back to those decisions. They are Kumar v the State HAM0011 of 2004 and Chandra Shekhar and Bimal Shankar Case No. HAM0015 of 2004.

Background

The applicant appellant is aged 18. He was charged with an offence of housebreaking, entering and larceny (Section 300 (A) of the Penal Code Cap. 17). The particulars of that offence are largely that on the 10th of April in the morning he went to his grandmother’s house, found it vacant, gained entry by removing louver blades and stole various items. He was later arrested, interviewed and admitted the thefts. All property was recovered.

On the 2nd of June 2004 he pleaded guilty to the charge and accordingly was sentenced on the same day to 9 months imprisonment.

I have read the Magistrate’s record which is spectacularly brief. It amounts to one page.

The sentencing decision was immediately appealed and it was accompanied by this application for bail.

Decision

The learned Magistrate’s very brief decision is in error in a number of respects. First there is no indication on the record of compliance of any kind with this young man’s constitutional rights. Secondly, there is no indication of any kind that the learned Magistrate provided this very young and naïve man with any of the usual benefits associated with an unrepresented accused. Further there is no indication of the proper construction of an appropriate sentence.

I mention these matters at the outset as I am required to first consider the likelihood of success of the appeal. As I said in Shekhar (supra) what is required is an assessment between the frivolous appeal and one made on a reasonable and arguable case.

In my view it is reasonable and arguable that this entire sentencing process was wrong in principle. It is accordingly likely that on appeal the sentence will require review and re-construction.

The issue then for consideration will be whether or not the Court may be minded to impose a suspended sentence of imprisonment or at least whether or not that is arguable. In my view that is a very good arguable submission bearing in mind the following:

1. The offender had no previous convictions.
2. The offender is extremely young.
3. The complainant is his grandmother.
4. There has been a reconciliation between them concerning this breaking and entering of her house.
   

In other jurisdictions I have very little doubt that this matter may have been resolved by the application of some robust common sense and a family group conference. The benefit of that process may have been that not only would it have demonstrated to this young man that he must accept responsibility for the wrong decisions he makes in his life, but it also may have enabled him on completion of some appropriate community service to avoid the unnecessary bad mark of a conviction against his name.

As I said in Shekhar (supra) the matter does not end there because each of the principles in Section 17 is disjunctive and must be individually considered to the Court’s satisfaction before bail can be granted pending appeal. The next consideration is the likely time before the appeal hearing. In my view the appeal hearing is unlikely to come before the Courts for at least another two months.

The next matter is the proportion of the original sentence which will have been served by the applicant when the appeal is heard. In my view over a quarter and something approaching a half of his practical sentence will have been served by the time he gets his appeal.

In those circumstances I am satisfied that he would be kept too long in custody and he would have proportionately served too long a sentence before his appeal.

Lastly, I am very grateful to Mr. Prasad who appears on behalf of the State. He has adopted a responsible position and does not oppose the application subject to bail being granted on strict conditions.

For all of these reasons I accordingly grant bail as moved subject to the following conditions:

1. There would be bail in the sum of $500.00.
   
2. One surety in the sum of $500.00.
   
3. The applicant will reside with his father Suresh Chand (f/n Kissun Lal) at the stated address in the affidavit.
   
4. He will report Mondays, Wednesdays and Fridays to the Nausori Police Station between the hours of 12.00 and 6.00pm.
   
5. He will be under a curfew at the residential address between 7.00pm and 7.00am.
   
6. He will surrender his Passport to the High Court at Suva and will undertake not to apply for any travel documentation pending the hearing of his appeal.
   
7. He is not to travel out of the general Nausori area except for the purposes of instructing counsel or attending Court.
   

Accordingly, he is now remanded on bail.

Gerard Winter
JUDGE

At Suva
Wed. 16th June, 2004