Naqa v The State [2004] FJHC 199; HAM0023.2004 (6 May 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CR. MISC. CASE NO. HAM0023 OF 2004

BETWEEN:

SENITIKI NAQA
SERUPEPELI TUINAKAUVADRA
INOKE NAIROIROI
PENI BUKA
SAILOSI LATIKAU
Applicants

AND:

STATE
Respondent

Counsel: Mr. S. Valenitabua - for the 5 Applicants
Ms. K. Bavou - for the State

Date of Hearing: 28th April, 2004
Date of Judgment: 6th May, 2004

RULING ON BAIL APPLICATION

Introduction

This is an application for bail pending appeal. Each of the applicants is an appellant against an 18 months immediate custodial sentence imposed on them on the 26th of March, 2004. The imposition of that custodial sentence came about as a result of a direction given by my learned sister Justice Shameem. Her honour called for the case to be sent back to the learned magistrate directing him to cancel an original order of suspension of that term of imprisonment.

Her honour made the order sending the case back for amendment on the 18th of July, 2003. Each of the applicants then unsuccessfully attempted to have their original guilty plea vacated and substituted with one of not guilty. Thereafter on the 26th of March, 2004 the magistrate was free to carry out the order of the High Court, made the directed amendment and delivered judgment giving each of the applicants an immediate effective term of 18 months imprisonment.

The applicants have appealed the immediate imposition of that custodial sentence on the following grounds:

(a) That the learned Magistrate erred in law in sentencing the appellants for 18 months imprisonment with effect from 26th March, 2004.

(b) That the learned Magistrate erred in law in not backdating the said 18 months imprisonment, without suspension, to the 1st and 2nd days of October, 2002 as the case may be.

(c) That the appellants have been subjected to double jeopardy.

The petition was filed on the 7th of April, 2004. The application for bail was made on the 21st of April, 2004 and heard before me on the 28th of April, 2004.

Bail Pending Appeal

A convicted applicant for bail carries the burden of proof. Unlike the general presumption contained elsewhere within the Bail Act these applicants must prove that there are extraordinary circumstances existing that will satisfy the Court that they should be released on bail during the pendency of the appeal (see Koya v the State High Court Criminal Case No. 0017 of 1996; Lautoka).

It follows that a convicted person carries a higher burden of satisfying the Court that bail be granted pending appeal.

In accordance with the provisions of the Bail Act 2002 when a Court is considering the grant 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; and
(c) the proportion of the original sentence which will have been served by the applicant when the appeal is heard.

The Applicants Case

Counsel for the applicants produced some helpful written submissions and supplemented those with oral argument.

He accepted the burden was on the applicants and that there was no presumption of bail in their favour. He reluctantly accepted that 3 months of the term of imprisonment will have been served by the time the appeal is heard.

In my view 3 months is a reasonable time to wait before an appeal hearing. It is certainly not exceptional. Further serving one sixth of the original sentence before an appeal is heard is unexceptional. I find that section 7(3)(b) and (c) of the Act do not aid the applicants.

Again reluctantly counsel for the applicant acknowledges that to be so and rests the strength of his case on sub-paragraph (a) of the section:

(a) “the likelihood of success in the appeal”.

I have not had the benefit of receiving the Magistrate Courts file. It is at present in preparation for sending to the High Court in respect of the substantive appeal. I have however had an opportunity to read the judgment of my sister Justice Shameem. It was this judgment that effectively caused the suspension to be cancelled and immediate sentence of imprisonment to be imposed. I have taken care to read that judgment and find that there are several passages within it that support her honour’s view that suspension of each of these sentences was not appropriate. I refer in particular to page 30 of her honour’s judgment where she simply says “this was clearly not an appropriate case for suspension (of imprisonment)”.

In the result her honour calls for the case to be sent back to the learned Magistrate for amendment under section 335 of the Criminal Procedure Code. Her honour took this step as in her view the Procedural Provisions limited the High Court Jurisdiction to a determination of the case being stated. Regrettably the case was stated only in relation to suspension of sentence as the State did not quarrel with the length sentence imposed. Given that circumstances her honour could not make any order varying the sentence and could only direct the learned magistrate to amend his sentencing remarks to the effect that there be no suspension.

In this regard I note that the 18 months term of imprisonment was suspended for a period of 3 years from the 1st and 2nd of October, 2002 ie the suspension period would not have expired until the 1st and 2nd of October, 2005.

Counsel for the applicants argues without the benefit of legislative fiat or common law precedent that such an amendment by the learned magistrate must be backdated to the date upon which he originally imposed sentence ie the 1st and 2nd of October, 2002.

The State opposed that argument.

It draws my attention to various passages in Justice Shameem’s judgment that under score her honour’s view that there should have been no suspension of imprisonment.

Decision

In my view it is clear that my sister Justice Shameem found that the magistrate erred in suspending this sentence. I agree with her honour’s observation. There was no basis upon which these violent offenders should have had their immediate sentence of imprisonment postponed.

I reject Mr. Valenitabua’s argument that in amending this sentence the learned magistrate had to backdate the cancellation of suspension and the commencement of a sentence of imprisonment to the original sentencing date.

Counsel was unable to place before me any interpretation of the legislation on the procedure in criminal appeals or the cancellation or variation of suspension to support his argument. He had no case law to support his argument. Rather he said that it was logical that the suspension and commencement of imprisonment would be backdated.

I disagree with him. This is a matter that will require fuller consideration and improved argument when it comes on for appeal. However, in my view there are two matters which indicate that it is correct to impose an immediate sentence of imprisonment when a suspension order is cancelled.

Firstly and procedurally, under section 335 of the Criminal Procedure Code after a successful case stated the High Court sends back the case and file for amendment and the learned magistrate must amend accordingly. The provision continues:

“................and the judgment shall be delivered after it has been so amended or restated.”

It follows as a matter of logic that the subject judgment is suspended during the period of consideration of the case stated and is “delivered” fresh after the magistrate has corrected the error that he fell into. The effect being that an immediate sentence of 18 months imprisonment starts to run from the point in time when that correct judgment is “delivered” after amendment.

Second, it must be remembered that a suspended sentence can be cancelled if there are further offences committed by an accused during the period of the suspension. The legislation provides that on cancellation of the suspension the term of imprisonment should be served immediately in addition to any penalty for the new offence.

It follows as a matter of logic that if as a result of a case stated or appeal process suspension of imprisonment is vacated then at that point in time the postponed sentence of imprisonment is resurrected and the offender is liable for an immediate gaol term.

I remind myself that this is a bail application pending appeal and that any assessment on the likelihood of success of the appeal is just exactly that an assessment of likelihood not a prediction or judgment. This must be a test with a low threshold. In these bail applications the appeal case is not to be scrutinized but assessed on its likely outcome.

The burden is on the convicted applicant appellant. He must convince the court that it is more likely than not that his appeal will succeed. Each of these applicants has not met that burden in this case.

Conclusion

After taking into account the likelihood of success in the appeal, the likely time before the appeal hearing and the proportion of the original sentence which will have been served by the applicant when the appeal is heard. I find there are no exceptional circumstances upon which bail should be granted. In each case bail is refused.

Gerard Winter
JUDGE

At Suva
6th May, 2004