Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Mani v The State [2006] FJHC 18; HAM0084.2005 (20 January 2006)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM0084 of 2005S

Between:

NARENDRA MANI
Applicant

And:

THE STATE
Respondent

Hearing: 19th January 2006
Ruling: 20th January 2006

Counsel: Mr. Raman Singh for Applicant
Ms V. Lidise for State

BAIL RULING

The Applicant applies for bail pending appeal. He was convicted, on his own plea of guilty, of fraudulent conversion of property, on the 25^th of July 2005. He was sentenced to 4 years imprisonment. He has now served 6 months of this sentence.

The facts of the case, according to the sentencing remarks of the learned Magistrate are that in April 1999, one Gopal Krishna gave his car to the Applicant for repair. The agreed cost was $800. $400 of this was paid to the Applicant in advance. The car was not repaired. When the complainant went to enquire he found his car parked inside a neighbour’s compound with a different number plate. He towed his car back to his own home. The neighbour said he had bought the car from the Applicant, to whom he had already paid $1200.

The Applicant was interviewed and charged. He failed to appear in court until he was brought to court in 2005 on bench warrant. The learned Magistrate said that his attitude to the court was that of a “cut throat villain” and that magistrates had allowed him to defy the court process. He then said–: “I have considered the Accused’s background and the offences committed and arrive at the following sentence: First Count – Sentenced to 4 years imprisonment.”

Counsel said that he had filed a petition of appeal against this sentence in the lower court, but that the Magistrates’ Court file was now lost. Indeed, despite numerous requests to the lower court to send the High Court, the court file, the court file has never appeared. On the 21^st of December 2005, the Senior Court Officer of the Suva Magistrates’ Court informed the High Court by memorandum, that the file “may be misplaced.”

There is no presumption of bail after conviction. Relevant to any bail application pending appeal is any merits in the appeal, the length of the sentence, any delay in the appeal hearing and any exceptional circumstances.

State counsel candidly conceded that there appeared to be merits in the appeal. She was right to do so. The 4 year term imposed exceeded the tariff for serious fraud offences, and does not appear to be justified by the facts of the case. It appears that the Applicant was treated as a first offender. The tariff for breach of trust offences is 18 months to 3 years imprisonment. It appears, from the sentencing remarks, that the learned Magistrate may have been influenced by the long delay caused by the Applicant’s absence from court. However, the cause of the delay was not an aggravating factor. Nor did it justify a sentence in excess of the tariff. The sentence is therefore likely to be reduced on appeal.

Further, I see no immediate prospects of an appeal hearing. If the court file is lost, no appeal date can be set. A prolonged delay would frustrate the Applicant’s appeal. It must be noted however, that a reconstructed court file might enable an appeal hearing.

In these circumstances bail must be granted. This application is allowed.

Nazhat Shameem
JUDGE

At Suva
20^th January 2006