Lesumailodoni v State [2013] FJHC 354; HAM069.2013S (25 July 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS CASE NO. HAM 069 OF 2013S

1. JOSEVATA LESUMAILODONI
2. VILIAME QATIVI
3. APIMELEKI WAQANACEVA
   

vs

THE STATE

Counsels: Mr. A. Vakaloloma for all Accuseds
Ms. M. Fong for State
Hearing: 3rd May, 2013
Ruling: 16th May, 2013
Written Reasons: 25th July, 2013

WRITTEN REASONS FOR REFUSAL OF BAIL

1. In Suva High Court Criminal Case No. HAC 094 of 2013S, the accuseds faced the following information:
   

FIRST COUNT

Statement of Offence

AGGRAVATED BURGLARY: Contrary to Section 313 (1) (a) of the Crimes Decree 44 of 2009.

Particulars of Offence

JOSEVATA LESUMAILODONI and VILIAME QATIVI between the 29th day of January 2013 and the 31st day of January 2013 at Waidroka, Navua, in the Central Division, entered the dwelling house of George Henius as trespassers with intent to commit theft of property therein.

SECOND COUNT

Statement of Offence

THEFT: Contrary to section 291(1) of the Crimes Decree 44 of 2009.

Particulars of Offence

JOSEVATA LESUMAILODONI and VILIAME QATIVI between the 29th day of January 2013 and the 31st day of January 2013 at Waidroka, Navua, in the Central Division, dishonestly appropriated a Tohatsu outboard engine valued at $3,000 and a bolt cutter, all the property of George Henius, with the intention to deprive George Henius of this property.

THIRD COUNT

Statement of Offence

AGGRAVATED BURGLARY: Contrary to section 313(1)(a) of the Crimes Decree 44 of 2009.

Particulars of Offence

JOSEVATA LESUMAILODONI, APIMELEKI WAQANACEVA and VILIAME QATIVI, between the 30th of January 2013 and the 31st of January 2013, at Waidroka, Navua, in the Central Division, entered the building of Toby Buchin as trespassers with intent to commit theft of property therein.

FOURTH COUNT

Statement of Offence

THEFT: Contrary to section 291(1) of the Crimes Decree 44 of 2009.

Particulars of Offence

JOSEVATA LESUMAILODONI, APIMELEKI WAQANACEVA and VILIAME QATIVI, between the 30th day of January 2013 and the 31st of January 2013, at Waidroka, Navua, in the Central Division, dishonestly appropriated a 40 HP Yamaha outboard engine valued at $11,000, a chainsaw valued at $1,500, a generator valued at $4,000, 5 x fishing rods valued at $20,000, an electric saw valued at $200 and 2 x electric drills valued at $400, all to the total value of $17,300 and all the property of Toby Buchin, with the intention to deprive the aforementioned Toby Buchin of this property.

FIFTH COUNT

Statement of Offence

AGGRAVATED BURGLARY: Contrary to section 313(1)(a) of the Crimes Decree 44 of 2009.

Particulars of Offence

JOSEVATA LESUMAILODONI and APIMELEKI WAQANACEVA, with another, on the 8th day of February 2013 at Waidroka, Navua, in the Central Division, entered the vacant dwelling house of Joe as trespassers with intent to commit theft of property therein.

SIXTH COUNT

Statement of Offence

THEFT: Contrary to section 291(1) of the Crimes Decree 44 of 2009.

Particulars of Offence

JOSEVATA LESUMAILODONI and APIMELEKI WAQANACEVA, with another, on the 8th day of February 2013 at Waidroka, Navua, in the Central Division, dishonestly appropriated a blue Yamaha generator valued at $4,500, the property of Joe, with the intention to deprive the aforementioned Joe of this property.

2. The accuseds first appeared in the High Court on 1st March 2013, and were all remanded in custody. On 20th March 2013, the accuseds, through their counsel, filed a notice of motion and an affidavit in support, seeking bail. The prosecution filed a written submission in reply on 3rd May 2013. I heard the parties on the same day, and adjourned for a ruling on 16th May, 2013. On 16th May, 2013, I declined the accuseds bail application, and said I would give my reasons later. Below are my reasons.
   

3. I have carefully read and considered the parties papers filed by the parties. I have also read and considered the substantive file HAC 094 of 2013S.

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: The Likelihood of Accused Surrendering to Custody:

5. I will deal with all accuseds together under this head. Looking at the accuseds' caution interview statements, it appeared all accused were related as brothers. Qativi was the eldest at 37, followed by Lesumailodoni who was 31, and Waqanaceva was 30 years. According to the prosecution, these offences were allegedly planned and jointly executed by the three brothers. On paper, the State's case against the accuseds appeared strong, because they allegedly confessed to the crime. If found guilty, they faced a possible sentence of more than 8 years imprisonment. Under this head, the accuseds' chances of bail are slim.

Factor No. 2: The Interest of the Accused Persons:

6. I will deal with all accuseds together under this head. The trial of this case will probably take place mid or late next year. They have been in custody since 1st March 2013, so they have spent approximately 4 months in custody. However, time spent in custody will be deducted from their final sentence, if found guilty, in this case. I understand a new remand centre worth $11 million dollars, was open this week, thus the accuseds would enjoy new facilities. They are represented by counsel, and he can visit them at the remand centre, to take instructions. There appears to be no need for them to be at liberty for other lawful reasons. They are not incapacitated. Under this head, the accuseds' chances of bail are slim.
   

Factor No. 3: Public Interest and Protection of the Community:

7. The allegations against the accuseds are very serious. They allegedly planned these burglaries and theft on the complainants, drove from Nadi to Waidroka and committed the offences. The complainants at Waidroka need to be protected from the accuseds and like-minded people. Although all accuseds are presumed innocent until proven guilty beyond reasonable doubt, in a court of law, in my view, it is in the public interest and the protection of the community that, they be remanded in custody, until further orders of the court. Under this head, the accuseds' chances of bail are slim.
   

Conclusion:

8. Given the above, I refused the accuseds' bail applications on 16th May 2013, and the above are my reasons. They are remanded in custody until further orders of the court.
   

Salesi Temo
JUDGE

Solicitor for Accuseds : Vakaloloma & Associates, Suva.
Solicitor for the State : Office of the Director of Public Prosecution, Suva.