Turagakece v State [2013] FJHC 131; HAM127.2012S (22 March 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS CRIMINAL CASE NO. HAM 127 OF 2012S

SAVENACA TURAGAKECE

vs

THE STATE

Counsels : Ms. T. Rigsby for Accused
Mr. S. Nath for State
Hearing : 7th September, 2012
Ruling : 5th October, 2012
Written Reasons: 22nd March, 2013

WRITTEN REASONS FOR REFUSAL OF BAIL

1. In Suva High Court Criminal Case No. HAC 253 of 2012S, the accused faced the following charges:
   

FIRST COUNT

Statement of Offence

INDECENT ASSAULT: Contrary to Section 154(1) of the Penal Code Cap 17.

Particulars of Offence

SAVENACA TURAGAKECE between the 1st day of January, 2004 and the 31st day of December, 2004 at Vabea Village, Ono, Kadavu in the Central Division, unlawfully and indecently assaulted a girl namely A. T.

SECOND COUNT

Statement of Offence

RAPE: Contrary to Section 149 and 150 of the Penal Code Cap 17.

Particulars of Offence

SAVENACA TURAGAKECE between the 1st day of January, 2005 and the 31st day of December, 2005 at Vabea Village, Ono, Kadavu in the Central Division, had unlawful carnal knowledge of a girl namely A. T, without her consent.

THIRD COUNT

Statement of Offence

RAPE: Contrary to Section 149 and 150 of the Penal Code Cap 17.

Particulars of Offence

SAVENACA TURAGAKECE, between the 29th day of January, 2006 and the 4th day of May, 2006, at Vabea Village, Ono, Kadavu in the Central Division, had unlawful carnal knowledge of a girl namely A. T, without her consent.

FOURTH COUNT

Statement of Offence

UNNATURAL OFFENCE: Contrary to Section 175(a) of the Penal Code Cap 17.

Particulars of Offence

SAVENACA TURAGAKECE between the 1st day of January, 2007 and the 31st day of December at Vabea Village, Ono, Kadavu in the Central Division, had carnal knowledge of a girl namely A. T against the order of nature.

FIFTH COUNT

Statement of Offence

RAPE: Contrary to Section 149 and 150 of the Penal Code Cap 17.

Particulars of Offence

SAVENACA TURAGAKECE between the 1st day of January, 2008 and the 31st day of December, 2008 at Vabea Village, Ono, Kadavu in the Central Division, had unlawful carnal knowledge of a girl namely A. T, without her consent.

SIXTH COUNT

Statement of Offence

INDECENT ASSAULT: Contrary to Section 154(1)(a) of the Penal Code Cap 17.

Particulars of Offence

SAVENACA TURAGAKECE between 18th day of May, 2009 and the 5th day of September, 2009 at Vabea Village, Ono, Kadavu in the Central Division, unlawfully and indecently assaulted a girl namely A. T.

SEVENTH COUNT

Statement of Offence

RAPE: Contrary to Section 207(1) and (2)(a) of the Crimes Decree.

Particulars of Offence

SAVENACA TURAGAKECE between 4th day of September, 2010 and the 25th day of January, 2011 at Vabea Village, Ono, Kadavu in the Central Division, had carnal knowledge or a girl namely A. T, without her consent.

EIGHTH COUNT

Statement of Offence

RAPE: Contrary to Section 207(1) and (2)(a) of the Crimes Decree.

Particulars of Offence

SAVENACA TURAGAKECE between 17th day of August, 2011 and the 4th day of September, 2011 at Urban Nest Motel, Suva in the Central Division, had carnal knowledge of a girl namely A. T, without her consent.

2. On 24th August, 2012, the accused applied for bail, by filing a notice of motion and an affidavit in support. The State replied with an affidavit in reply and a submission, on 7th September, 2012. I have read the papers submitted by the parties, and on 5th October, 2012, I refused the application. I said I would give my reasons later. Written below are my reasons.
   

3. When applying for bail, the accused, in paragraph 7 of his affidavit dated 23rd August, 2012, said, "...I am aware that I will serve time for what I did..." He is asking for bail to "organize proper care for (his) wife, other dependent's and also (his) properties and assets in Kadavu" [paragraph 12 of his 23rd August, 2012 affidavit in support]. The State, however, strongly objected to bail on the ground that, according to the factors outlined by Section 19 of the Bail Act 2002, bail should not be granted.

4. It is well settled that, an accused person is entitled to bail pending trial, unless the interest of justice requires otherwise (section 3(1) of the Bail Act 2002). It is also well settled that, the primary consideration in deciding whether to grant bail is the likelihood of the accused person turning up in court to take his trial on the date arranged (section 17(2) of the Bail Act 2002). It is also well settled that, in order for the court to decide the above issue, it is mandatory for it to consider each of the factors mentioned in section 19 of the Bail Act 2002, that is, the likelihood of the accused surrendering to custody, the interest of the accused and the public interest and protection of the community.

Factor No. 1: Likelihood of Accused Surrendering to Custody:
5. The accused was 46 years old in 2012. The complainant was a 19 years old secondary school student at the time. The accused was the complainant's step father. The accused, his wife, the complainant and two other siblings live in a house, as a family, in a village in Kadavu. According to the prosecution, the accused admitted the offences when he was caution interviewed by police in June 2012. If found guilty, the accused will probably spent more than 10 years in prison. The offences are certainly serious. Under this head, the accused's chances of bail are slim.

Factor No. 2: The Interest of the Accused's Person:
6. Since most of the dates have been taken over by trials this year, the accused's trial will take place sometime early or middle next year. He had been remanded in custody since 10th August, 2012. So, he had been remanded in custody for about 7 months now. However, if found guilty after trial, time spent on remand will be deducted from the final sentence. He is been represented by counsel, and she can visit him in custody, to take instructions. I understand a new remand centre in Suva is about to open, giving the accused the opportunity to enjoy the new facility. He appears not incapacitated, and it would appear there is no need for him to be at liberty for other lawful reasons. Under this head, the accuseds' chances of bail are slim.

Factor No. 3: Public Interest and Public Protection:

7. This was an alleged attack on a step-daughter by her step-father. According to the prosecution, the accused sexually attacked his step-daughter from 2004 to 2011 – a period of approximately 7 years. The attacks involved multiple alleged indecent assaults, unnatural offences and rape. Although the accused is presumed innocent until proven guilty beyond reasonable doubt in a court of law, in my view, given the serious nature of the allegations against him, it is in the public interst and the protection of the complainant that the remanded in custody, until trial time. Under this head, the accused's chances of bail are slim.

Conclusion:

8. For the above reasons, I refused the accused's application for bail on 5th October, 2012. He is remanded in custody until trial time. Only in the most exceptional circumstance is he to be released on bail.
   

Salesi Temo
JUDGE

Solicitor for the Accused : Rigbsy Law, Nausori
Solicitor for the State : Office of the Director of Public Prosecution, Suva.