Achari v The State [1995] FJHC 79; HAM0005d.1995s (28 April 1995)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Misc. No. HAM0005 OF 1995

In the Matter of Section 315
of the Criminal Procedure
Code (Cap 21)

and

In the Matter of an appeal from the
Magistrates Court at Suva in
Criminal Case No. 850 of 1994.

Between:

JITEN ACHARI
Appellant

And:

THE STATE
Respondent

Counsel: Mr. Raza for Appellant
Mr. Hook for Respondent

Hearing: 13th April 1995
Decision: 28th April 1995

DECISION OF PAIN J.

The Appellant was convicted in the Magistrates Court on a charge of causing death by dangerous driving (Section 238(l) of the Penal Code). He was sentenced to two years imprisonment.

A Petition of Appeal against conviction and sentence was filed by the Appellant. He applied to the trial Magistrate for bail pending the hearing of the appeal and this was refused. The Appellant now applies to this Court for bail. This application is opposed by the State.

Bail pending appeal is not readily granted. Exceptional circumstances must be shown. In WATTON (1978) 68 Cr. App. R 293 the Court said (at page 296) that "bail is granted only where it appears prima facie that the appeal is likely to be successful or where there is a risk that the sentence will have been served by the time the appeal is heard". This authority has been regularly applied in subsequent decisions.

Counsel for the Appellant argued that the sentence imposed on the appellant is harsh and excessive. He submitted that the appeal is likely to succeed because "such cases normally attract only a suspended sentence".

The two cases referred to by counsel in their submissions (Marau v The State, Crim. App. 79 of 1990 and Kasanawaqa v The State, Crim. App. 62 of 1991) refer to the seriousness of this type of offending and the need for penalties to reflect the concern of the public about the rising toll of road deaths. Both indicate that an immediate custodial sentence can be expected.

Moreover, even in cases where a suspended sentence has been imposed, the Court must have determined that a sentence of imprisonment is appropriate for the offence. It is a recognized sentencing principle that a suspended sentence can only be imposed if the offence warrants an immediate prison sentence. The Court must first fix a period of imprisonment that is justified for the offence and then decide whether that period of imprisonment is or is not to be suspended. (See, for instance, R v Mark 1975 Crim. LR 112 and R v English (1984) 6 Cr. App. R (S) 60).

Accordingly it cannot be said that prima facie, this appeal against a sentence of imprisonment is likely to succeed.

Counsel for the appellant also submitted that a substantial part of the prison sentence is likely to be served before the appeal is heard. Counsel for the Respondent replied by advising that the Criminal Registry has indicated that the record from the Magistrates Court should be available within one month. I exhort the Magistrates Court to prepare the case record as a matter of urgency. As soon as the record is filed in this Court I will fix an early date for hearing the appeal.

Accordingly no grounds have been made out for the grant of bail pending the hearing of the appeal. The application is refused.

JUSTICE D.B. PAIN

HAM0005D.95S