Kumar v The State [2004] FJHC 185; HAM0011.2004 (19 March 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISC. CASE NO. HAM0011 OF 2004

BETWEEN:

SHAVINESH KUMAR
Applicant

AND:

STATE
Respondent

Hearing: 19th December, 2003
Ruling: 19th December, 2003

Counsel: Mr. Raza - for the Applicant
Ms Prasad - for the Respondent

EX TEMPORE BAIL RULING

The applicant applies for bail pending appeal. Under the provisions of the Section 17 of the Bail Act 2002, the relevant principles are the merits of the appeal, the likely time before the appeal is heard and the proportion of sentence that will have been served by the time the appeal is heard.

The sentence given is short. This is an urgent application. At first appearance this morning the Prosecutor wanted some days to prepare a response. That delay is not called for. The issues are discrete. I did however adjourn the hearing until 2.15pm to allow counsel some time to reflect on the matter.

I have had the benefit of reviewing the Court File from the Magistrates Court.

The applicant pleaded guilty on the 17th of March 2004 to one count of assault occasioning actual bodily harm. From the summary of facts it appears that in February of this year this young 24 year old student had been drinking liquor at home. His sister-in-law was also there. It is said in his drunken state he asked his sister-in-law to have sex with him. She refused and he beat her up. A subsequent medical report on the victim is consistent with her receiving blows to both sides of the face and kicks about the body. When interviewed the applicant admitted the offence. However, he said that in actual fact he didn’t proposition his sister-in-law. What happened he said was that she separated from his brother but remained living in the family home. She apparently had a boyfriend at the house and this incensed the applicant to a point of rage. In my view it matters not whether he claims provocation. Violence of any form particularly drunken beatings are intolerable.

He is 24 years old, single, a Fiji Institute of Technology student in his final year of studies.

The learned Magistrate notes the maximum sentence is 5 years. Indicates he was going to give 18 months but reduced that because of the early guilty plea and the fact that the applicant was a first offender.

This was a relatively short sentence. Even on an urgent basis the file is going to take weeks before it is properly prepared for an appeal hearing and by then a fair proportion of the actual sentence will have been served.

The State does not concede this was minor. They remind me of the rebuttable presumption for bail and in a professional way argue the tests under the limb but offer no comparable analysis on applicable sentence.

In my view there is at least an arguable case that a sentence of 6 months imprisonment is excessive for a first offender in these circumstances. The applicant is in his final year of an Automotive Engineering Course. If he remains in prison there is precious time lost in the completion of his study.

In addition I believe the learned Magistrate may have been assisted by a victim impact report, the victim’s views on sentence while not determinative may have been helpful in assessing the offender’s true culpability and perhaps remorse for the drunken, savage and unwarranted beating he handed out. In addition reconciliation may have been assisted by such a report.

In these circumstances I am prepared to grant bail pending appeal and order accordingly. This is not to be taken by the prisoner as any indication at all of the sentence appeal result.

Conditions to Bail

1. To reside with his parents at Lot 16 Maqbool Road, Nadera.
   
2. Curfew at that address to remain there and be available to personally respond to enquiry from 7.00pm to 6.00am each day.
   
3. To report to the Nadera Police Post between 6.00am to 6.00pm three times a week.
   
4. To remain within the greater Suva City district boundary.
   
5. To surrender any Passport on 22/3/04 at 9.00am to the Registrar and not to obtain any travel documents.
   
6. Not to approach or any time interfere with the victim.
   
7. Abstain from alcohol and/or any other intoxicating substance. Not to enter or remain in any licensed premises.
   

Gerard Winter
Judge

At Suva
19th March, 2004

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISC. CASE NO. HAM0011 OF 2004

BETWEEN:

SHAVINESH KUMAR
Applicant

AND:

STATE
Respondent

Hearing: 19th December, 2003
Ruling: 19th December, 2003

Counsel: Mr. Raza - for the Applicant
Ms Prasad - for the Respondent

ORDER

Bail pending appeal is granted. Order accordingly.

BAIL CONDITIONS

1. To reside with his parents at Lot 16 Maqbool Road, Nadera.
   
2. Curfew at that address to remain there and be available to personally respond to enquiry from 7.00pm to 6.00am each day.
   
3. To report to the Nadera Police Post between 6.00am to 6.00pm three times a week.
   
4. To remain within the greater Suva City district boundary.
   
5. To surrender any Passport on 22/3/04 at 9.00am to the Registrar and not to obtain any travel documents.
   
6. Not to approach or any time interfere with the victim.
   
7. Abstain from alcohol and/or any other intoxicating substance. Not to enter or remain in any licensed premises.
   

Judge

At Suva
19th March, 2004