Rasigarea v State [2010] FJHC 288; HAM008.2010 (6 August 2010)

N THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO. 8 OF 2010

BETWEEN:

RUPENI RASIGAREA
APPLICANT

AND:

STATE
RESPONDENT

Counsel: Mr. A Sen - for the Applicant
Mr. L Sovau - for the Respondent

BAIL RULING

1. An application for bail pending appeal in this case being number HAA 20/2010 at the High Court in Labasa.
   
2. The appellant Rupeni Rasigarea was charged as following:
   

Assault Occasioning Actual Bodily Harm: Contrary to section 245 of Penal Code, Cap. 17.

3. The appellant had pleaded guilty on the very first occasion before the Magistrate.
   
4. The appellant was found guilty on his own plea and sentenced for 6 months imprisonment.
   
5. Both Counsels made Submissions and filed written submission in support of their arguments.
   
6. The Bail Act Section 3(1) say as follows:
   

3. (1) Every accused person has a right to be released on bail unless it is not in the interests of justice that bail should be granted.

(2) Bail may be granted by a court or, subject to section 8(2), by a police officer.

(3) There is a presumption in favour of the granting of bail to a person ut a person who opposes the granting of bail may seek to rebut the presumption.

7. In the case of Pita Matai v The State (2008) FJCA 89; AAU0038.2008 (22 December 2008). It was discussed that:
   

"When a Court is considering the granting of bail to a person who has appealed against conviction or a sentence the Court must take into account –

(a) the likelihood of success in the appeal;

(b) the likely time before the appeal hearing;

(c) the proportion of the original sentence which will have been served by the Applicant when the appeal is heard".

8. Now I consider the appeal of the appellant when he had been convicted for Assault Occasioning Actual Bodily Harm punishable under section 245 of the Penal Code.
   
9. The appellant was sentenced to 6 months imprisonment and should be noted that he is a first offender without any previous convictions.
   
10. Considering tariff of the offence I wish to direct myself with the decision of Elizabeth Joseph vs The State (2004) HAA 073/04 which is followed in State vs Salote Tugalala HAC 025/2008 and State vs Cavukai (2010( FJJHC 249; HAC 069.2010 (15 July 2010). It is well established that the tariff is from absolute or conditional discharge to 12 months imprisonment.
    
11. The State Counsel submitted that the applicant should submit exceptional circumstances or unusual reasons to obtain bail pending appeal.
    
12. Considering all available materials I am of the view that this applicant is entitled for bail under Section 3(1) of the Bail Act. The state has not submitted acceptable grounds to refute the entitlement under the Bail Act. Therefore I consider in favour of the applicant.
    
13. Bail granted on the following conditions.
    
    1. Two sureties acceptable to the court.
       
    2. Report to the Police Station on the last Saturday of every month between 9.00a.m. to 4.00p.m.
       
    3. Not to interfere with the victim.
       

S. THURAIRAJA
JUDGE

At Labasa
6 August 2010