Seninawanawa v State [2013] FJHC 413; HAM184-187.2013 (16 August 2013)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

Crim Misc Case No: HAM 184/2013
HAM 185/2013
HAM 186/2013
HAM 187/2013

BETWEEN :

TAITO SENINAWANAWA
APPLICANT

AND :

THE STATE
RESPONDENT

COUNSEL : Applicant in person
Mr.F.Lacanivalu for the State
Date of Hearing : 13/08/2013
Date of Ruling : 16/08/2013

BAIL RULING

[1] The applicant TAITO SENINAWANAWA had applied for bail pending trial second time in the above numbered cases.

[2] The applicant has been charged as follows:

1. Aggravated Robbery contrary to section 311(a) and Theft contrary to section 291(1) of the Crimes Decree No: 44 of 2009. (HAC 133/2012);
2. Aggravated Burglary contrary to section 313(1) (a) and Theft contrary to section 291(1) of the Crimes Decree No: 44 of 2009. (HAC 137/2012);
   

100. Aggravated Burglary contrary to section 313(1)(a),Theft contrary to section 291(1),Aggravated Burglary contrary to section 313(1)(a) and Theft contrary to section 291(1) of the Crimes Decree No:44 of 2009.(HAC 138/2012);
     

4. Aggravated Burglary contrary to section 313(1) (a) of the Crimes Decree No: 44 of 2013. (HAC 139/2012).
   

[3] When Applicant's first bail applications were pending before the High Court he had escaped from lawful custody. He had been re-arrested on a warrant issued by the High Court.

[4] Applicant's main grounds of Bail are as follows:

a) That he has a wife who is unemployed and supports a 5 year old daughter;

b) That he has been in remand for last 6 months;

c) That his family has suffered a lot during the height of cyclone Evan and that part of his house was blown away;

4. That his wife was pregnant at that time of the disaster has lost her new born baby due to the lack of medical facilities;
   
5. That his family is suffering as he is in remand because his wife is unemployed;
   
6. That he is innocent;
   
7. That he is willing to provide suitable sureties;
   

h) That he is a full time employee, driving for Miriama Tuki to earn his family income; and,

1. That his parents are old and retired and need constant medical assistance and his remand has left them without a better and healthy life.
   

[5] Section 3(1) of the Bail Act states that an accused has a right to be released on bail unless it is in the interest of justice that bail should not be granted. Consistent with this principle, section 3 (3) of the act provides that there is a presumption in favour of the granting of bail to a person, but a person who opposes the granting of bail may seek to rebut the presumption.

[6] In determining whether to grant bail is the likelihood of the accused person appearing in court to answer the charges laid against him or her. (17(2)

[7] Where bail is opposed, section 18(1) requires that the party opposing bail addresses the following considerations:

(a) the likelihood of the accused person surrendering to custody and appearing in court;

(b) the interest of the accused person:

(c) the public interest and the protection of the community.

[8] Section 19(1) of the bail act provides that an accused person must be granted bail by court unless:

(a) the accused person is unlikely to surrender to court custody and appear in court to answer charges laid;

(b) the interest of the accused person will not be served through the granting of bail; or

(c) granting bail to the accused person would endanger the public interest or make the protection of the community more difficult.

[9] Section 19(2) of the Act sets out a series of considerations that the court must take into account in determining whether or not any of the three matters mentioned in section 19(1) are established. These matters are:

(a) as regards the likelihood of surrender to custody-

(i) the accused person's background and community ties (including residence, employment, family situation, previous criminal history);

(ii) any previous failure by the person to surrender to custody or to observe bail conditions;

(iii) the circumstances, nature and seriousness of the offence;

(iv) the strength of the prosecution case;

(v) the severity of the likely penalty if the person is found guilty;

(vi) any specific indications (such as that the person voluntarily surrendered to the police at the time of arrest, or as a contrary indication, was arrested trying to flee the country)

[10] The Applicant has a history of escaping from lawful custody. He has thrice escaped from lawful custody disregarding the law of this country.

[11] In addition the Applicant has two pending cases.

[12] State opposing to bail being granted submitted that the applicant has committed Aggravated Robbery, Theft and Aggravated Burglary which attract maximum imprisonment of 20 years, 10 years and 17 years respectively.

[13] State further submits that the Applicant has not shown any change of circumstances to move this court to re- consider his bail application.

[14] Applicant is 34 years old. His parents were present in this court on the hearing day. He has 13 previous convictions.

[15] The primary consideration in deciding whether to grant bail is the
likelihood of the accused person appearing in court to answer charges laid against him.

[16] Considering all these factors into account, especially the long list of previous convictions and escaping from lawful custody, it is not in the interest of justice to grant bail to the Applicant. Bail refused.

P Kumararatnam
JUDGE

AT LAUTOKA
16 AUGUST 2013

Solicitors: The Office of the Director of Public Prosecution for the State
Accused appeared in Perso