Vananalagi v State [2010] FJHC 407; HAM087.2010S; HAM092.2010S; HAM093.2010S (5 August 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

MISCELLANEOUS CASE NO. HAM 087, 092 AND 093 OF 2010S

1. SEREVI VANANALAGI
2. ROPATE NAISUA
3. IOWANE SALACAKAU
4. SAMUELA RAKOPETA

V

STATE

Counsels: Ms. S. Vaniqi for all Applicants
Ms. L. Koto for the Respondent

Hearings: 11th June 2010
Ruling: 5th August 2010

RULING ON BAIL APPLICATION

1. In High Court Criminal Case No. HAC 91 of 2010, the following applicants faced the following charges:

FIRST COUNT
Statement of Offence

ROBBERY WITH VIOLENCE: contrary to section 293(1)(b) of the Penal Code, Act 17.

Particulars of Offence

SEREVI VANANALAGI, ROPATE NAISUA AND IOWANE SALACAKAU on the 6th day of January 2010 at 437 Waimanu Road, Samabula in the Central Division robbed one STEPHEN JOHN PAUL of a Toshiba Laptop valued at $600.00, Seiko wrist watch valued at $800.00, 2x Men's watches valued at $160.00, a Sony Digital Camera valued at $800.00, GPS Receiver valued at $600.00, gold chain valued at $1000.00, all to the total value of $5,960.00 and immediately before and after such robbery did use personal violence on the said STEPHEN JOHN PAUL.

SECOND COUNT
Statement of Offence

UNLAWFUL USE OF MOTOR VEHICLE: contrary to section 292 of the Penal Code, Act 17.

Particulars of Offence

SEREVI VANANALAGI, ROPATE NAISUA AND IOWANE SALACAKAU on the 6th day of January 2010 at 437 Waimanu Road, Samabula in the Central Division unlawfully and without colour of right but not so as to be guilty of stealing, took to their own use motor vehicle registration number DP 748, the property of STEPHEN JOHN PAUL.

THIRD COUNT
Statement of Offence

ROBBERY WITH VIOLENCE: contrary to section 293(1)(b) of the Penal Code, Act 17.

Particulars of Offence

SEREVI VANANALAGI, ROPATE NAISUA, IOWANE SALACAKAU and SAMUELA RAKOPETA on the 7th day of January 2010 at the Niranjans Service Station, Walu Bay in the Central Division, robbed one AMIT PRASAD of cash $146.20, 7x lighters valued at $23.25, assorted cigarettes valued at $189.75, a Digicel Phone valued at $50.00, assorted recharge cards valued at $160.00 and a cash till valued at $65.00 all to the total value of $634.40 and immediately before and after such robbery did use personal violence on the said AMIT PRASAD.

FOURTH COUNT
Statement of Offence

ROBBERY WITH VIOLENCE: contrary to section 293(1)(b) of the Penal Code, Act 17.

Particulars of Offence

SEREVI VANANALAGI, ROPATE NAISUA, IOWANE SALACAKAU and SAMUELA RAKOPETA on the 7th day of January 2010 at the Total Service Station, Vivrass Plaza in the Central Division, robbed one SANJIWAN SAMI of cash $399.00 and immediately before and after such robbery did use personal violence on the said SANJIWAN SAMI.

FIFTH COUNT
Statement of Offence

RESISTING ARREST: contrary to section 247 (b) of the Penal Code, Act 17.

Particulars of Offence

SEREVI VANANALAGI, on the 7th day of January at Korovou in the Eastern Division, resisted the unlawful apprehension by S/CPL 2243 SAMISONI who was in the due execution of his duty.

SIXTH COUNT
Statement of Offence

DRIVING MOTOR VEHICLE WITHOUT A DRIVING LICENCE: contrary to section 56(3) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence

SEREVI VANANALAGI, on the 6th day of January 2010 at 437 Waimanu Road, Samabula in the Central Division drove a motor vehicle registration number DP 748 without a valid driving licence.

SEVENTH COUNT
Statement of Offence

DRIVING MOTOR VEHICLE IN CONTRAVENTION OF THIRD PARTY POLICY RISKS: contrary to section 4(1)(2) of the Motor Vehicle and [Third Party Insurance] Act 177.

Particulars of Offence

SEREVI VANANALAGI, on the 6th day of January 2010 at 437 Waimanu Road, Samabula in the Central Division drove a motor vehicle registration number DP 748 along Grantham Road without a Third Party Policy Risk.

2. A plea has not being put to the accuseds yet, but if they are pleading not guilty, the trial will probably be heard before June next year. They first appeared in court on 7th May 2010, and have being remanded in custody since then. They applied for bail in Miscellaneous Case No. 087, 092 and 093 of 2010, but I will deliver a joint ruling on the matter, because they were jointly charged in High Court Criminal Case No. HAC 91 of 2010. On the 22nd July 2010, I declined their bail application and said I will deliver my reasons. These are my reasons.

3. It is well settled that the primary consideration for the grant of bail is whether or not they will turn up in court, on the date arranged, to take up their trial (section 17(2), Bail Act 2002). The factors to be considered in determining whether or not to grant bail are contained in Section 19 of the Bail Act.

4. Serevi Vananalagi relied on the following grounds for his bail application:

(i) to find a counsel of his choice;

(ii) to support a sickly father:

(iii) the only sole breadwinner in the family;

(iv) would like to attend a medical check-up.

5. Ropate Naisua relied on the following grounds for his bail application:

(i) to find a counsel of his choice;

(ii) to prepare for his defence.

6. Iowane Salacakau relied on the following grounds for his bail application;

(i) bail was granted in the Magistrate Court, so bail should be granted by the High Court;

(ii) ask for similar bail conditions as imposed in the Magistrate Court;

(iii) he has no pending charges;

(iv) has no previous convictions.

7. Samuela Rakopeta relied on the following grounds for his bail application;

(i) bail was granted by the Magistrate Court, so bail should be granted by the High Court;

(ii) can provide a surety;

(iii) promise to attend all court proceedings.

8. I have carefully read and considered all the written and verbal submissions advanced by the parties. I have also read the affidavits submitted by the parties. Most of the applicants' grounds of bail were similar.

9. As for Serevi Vananalagi, he has four previous convictions. According to the prosecution, he has several pending cases, that is, CF 1291/04; CF 2006/08; CF 1209/08 and CF 999/08, presumably in the Magistrate Courts. The file numbers indicated that the above files are from 2004 and 2008. In other words, he had pending 2004 and 2008 criminal files, when he allegedly committed the offences in High Court Criminal Case No. HAC 91 of 2010. So, for Serevi, the issue becomes one of public safety and public security. Will the public interest and safety require him to remain in custody, pending the trial dates? Will his continued remand enhance the protection of the community?

10. Ropate Naisua is not new to the criminal justice system. He has 19 previous convictions, at the age of 22 years. According to the prosecution, 9 of the previous convictions were similar to the charges he's currently facing. He escaped from lawful custody on 23.2.07 and 17.8.07. Although he is presumed innocent until proven guilty beyond reasonable doubt, he allegedly confessed to three "robbery with violence" offences in two days. The question of public safety and protection arises? Will the public interest and its safety, require Ropate to be remanded in custody until trial date?

11. Iowane Salacakau is 18 years old. He has no previous convictions. But according to the prosecution, the accused had four pending criminal files, presumably in the Magistrate Courts, that is, CF 1989/08; CF 1579/09; CF 17/09 and 18/09. The pending files involved "robbery with violence", "burglary and larceny", "resisting arrest" etc. The file numbers indicated these were pending 2008 and 2009 cases. Although, Salacakau has no previous convictions and is presumed innocent until proven guilty beyond reasonable doubt, he nevertheless allegedly committed the offences in High Court Criminal Case No. HAC 91 of 2010, when four criminal cases were pending against him. His bail application therefore becomes a matter of whether or not the public, will be secure if he is bailed? In other words, what does the public interest or public safety require, in view of his bail application?

12. Samuela Rakopeta is no stranger to the criminal justice system. At the age of 24 years, he has accumulated 15 previous convictions. According to the prosecution, 8 of those previous convictions are somewhat similar to the present charges he's facing. According to the prosecution, he has pending cases against him. In High Court Criminal Case No. HAC 91 of 2010, he allegedly confessed to two "robbery with violence" in a day. His case therefore becomes one of public safety. Will the protection of the public be enhanced if he's remanded in custody?

13. I have carefully considered the accuseds' bail application. In my view, their case impinges on the issue of public safety. Although all of them are presumed innocent until proven guilty beyond reasonable doubt, as a matter of public interest and public safety, they are all remanded in custody, until the trial date. In any future bail application, exceptional grounds must be shown before bail is granted.

Salesi Temo
ACTING JUDGE

AT Suva
5th August 2010