Tukai v State [2013] FJHC 682; HAM203.13 (12 December 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Miscellaneous Case No. HAM 203 of 2013

BETWEEN:

PENI TUKAI
Applicant

AND:

THE STATE
Respondent

Counsel: Applicant In Person
Mr. Niudamu J for Respondent

Date of Ruling: 12th December 2013

RULING ON BAIL PENDING TRIAL

1. The applicant, Peni Tukai, is charged with two counts of "Aggravated Robbery", contrary to section 311 (1) (a) of the Crimes Decree 2009 and one count of "Theft of a Motor Vehicle" contrary to section 291 (1) of the Crimes Decree 2009. The amount involved in two counts of Robbery runs around $91,000. The 3 charges and the Particulars of Offences are as follows:
   

FIRST COUNT

Statement of Offence

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

Particulars of Offence

PENI TUKAI, MICHAEL SCOTT and PENI MATAIRAVULA on the 17th of June 2013 at Nakasi in the Eastern Division, stole a taxi registration number LT 6805 the property of MOHAMMED SHERAB HARIS KHAN

SECOND COUNT

Statement of Offence

AGGRAVATED ROBBERY: Contrary to section 311 (1) (a) of the Crimes Decree 44 of 2009.

Particulars of Offence

PENI TUKAI, MICHAEL SCOTT and PENI MATAIRAVULA on the 17th of June 2013 at Nakasi in the Eastern Division, robbed MOHAMMED SHERAB HARIS KHAN and stole cash totalling to $400.00, Compaq Laptop valued at $1,200.00, Blackberry Mobile phone valued at $700.00, Nokia Mobile phone valued at $300.00 and Anroid Mobile phone valued at $1,200, all to the total value of $3,800.00 and immediately before the robbery did use personal violence on the said MOHAMMED SHERAB HARIS KHAN.

THIRD COUNT

Statement of Offence

AGGRAVATED ROBBERY: Contrary to section 311 (1) (a) of the Crimes Decree 44 of 2009.

Particulars of Offence

PENI TUKAI, MICHAEL SCOTT and PENI MATAIRAVULA on the 17th of June 2013 at Nabua in the Central Division, robbed MOHAMMED AZIM SHAH and stole cash totalling to $49,336.95 and cheque amounting to $37,904.45 all to the total value of $87, 241.40 and immediately before the robbery did use personal violence on the said MOHAMMED AZIM SHAH.

2. The applicant is in remand custody since 12th of July 2013. He is married with 7 children, two are attending Secondary school, two are in Primary school and three are staying at home. The applicant claims to be the sole bread winner of the family.
   
3. The State opposes to Bail saying that the applicant has 65 previous convictions and out of which 6 are less than 10 years. Detective Constable 3650 Semi Dau, in his affidavit opposing bail highlights that out of those 6 previous convictions two are robbery with violence, one criminal intimidation and one resisting arrest. The State's concern is the previous conviction on 'Resisting Arrest'. The State points out the seriousness of these offences charged and the severity of the sentence, if the applicant found guilty.
   
4. The prime consideration at this point of time is to decide the likelihood of the applicant to appear in court to answer to the charges laid against him. In terms of section 3 of the Bail Act, there is a presumption in favour of granting bail and the party who opposes the granting of bail has to rebut the said favourable presumption.
   
5. Section 18 (1) of the Bail Act states as follows:
   

"A person making submissions to a court against the presumption in favour of bail must deal with _

(a) The likelihood of the accused person surrendering to

custody and appearing in court;

(b) The interests of the accused person;
(c) The public interest and the protection of the community"

6. According to section 19 (2) (a) of the Bail Act, the following reasons can be considered for refusing Bail.
   
   • The applicant's previous criminal history,
   • Any previous failure by the applicant to surrender to custody or to observe bail conditions,
   • The circumstances, nature and seriousness of the offence,
   • The strength of the prosecution case, and
   • The severity of the likely penalty if the applicant is found guilty.
     
7. Further, section 19 (2) (c) identifies the likelihood of the applicant to commit an arrestable offence whilst on Bail as a reason to refuse Bail.
   
8. Despite the facts stated in D/C Semi Dau's affidavit, this court observed that the accurate number of previous convictions within the operative period of 10 years is 7. That 7 previous convictions consist three instances of Robbery with Violence, two instances of Escaping from Lawful Custody and one instance of Resisting Arrest.
   
9. This background does not assist the applicant at all. The situation gets worse when the application for Bail says that the applicant has another pending case at Nasinu Magistrate's Court. (Details are not given) It is in this context, the Respondent convinced the court that release of the applicant on bail not only possesses a great risk of him been evading the court to stand trial, but poses a substantive threat to the protection and safety of public at large.
   
10. The State, in this instance, managed to rebut the presumption in favour of granting bail to the applicant. This court agrees with the State that the personal needs of the applicant carries less weight when it comes to social security. Hence, the application for Bail pending trial is dismissed.
    

Janaka Bandara
Judge

At Suva
Applicant in Person
Office of the Director of Public Prosecution for the Respondent