Sagaitu v State [2013] FJHC 88; HAM50.2013 (6 March 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM50 of 2013

BETWEEN:

MOHAMMED SHEEFAZ JAMEER SAGAITU
Applicant

AND:

THE STATE
Respondent

BEFORE : THE HON. JUSTICE PAUL MADIGAN

Counsel : Mr. J. Savou (L.A.C.) for the applicant
Ms M. Fong for the State

Date of hearing : 5 March 2013
Date of ruling : 6 March 2013

RULING

[1] The applicant applies for bail pending trial. He has been charged in this Court with 2 counts of living on the earnings of prostitution contrary to sections 230(1)(a) and (2) of the Crimes Decree as well as 3 counts of Domestic Trafficking in Children contrary to sections 117(1)(a), 1(b) and 1(c)(i) of that Decree. The substantive case is presently before this Court in the early stage of proceedings where pre-trial issues are being dealt with.

[2] Mr. Savou on behalf of the applicant submits that, having a right to bail under section 3 of the Act, there is nothing to rebut the presumption in favour of bail, at least not in terms of the legislative contradictions to that presumption. His client has a clear record and it is not a domestic violence offence.

[3] One of the main arguments he proffers in support of his application is that his client is homosexual and that because of that sexual orientation, he is in the remand centre subject to verbal abuse, teasing and harassment. He holds back from submitting that he has been physically sexually abused but he does submit that in sharing the remand centre with murderers and rapists, he fears for his sexual safety.

[4] Most alarmingly he submits that this teasing and harassment comes as much from Prison Officers as well as fellow inmates.

[5] The applicant has strong family ties in Suva and offers his brother and sister-in-law as sureties if he were to be admitted to bail. His brother is self-employed as a contractor and is able to offer the applicant employment if needs be. The applicant is 23 and has spent most of his life in Suva with no contacts or ties in any other part of Fiji. He does not have a passport and is not a flight risk.

[6] The State in reply submits that the offence is very serious indeed and that if convicted the applicant could face a term of imprisonment of up to 25 years. They submit that coupled with the applicant's full confession and the evidence of the "victims" there is every likelihood he may abscond to avoid conviction and a lengthy incarceration.

[7] The State submits in addition that the novelty of the charges (in the Fijian context) coupled with the allegations of exploitation of children creates a worrying scenario that in the public interest needs to be determined quickly and the applicant held secure to effect that purpose.

Analysis
[8] The sexual orientation of an applicant has no relevance to a bail application. If danger exists to a remand prisoner then it is for the prison authorities to protect their charge from physical or verbal abuse. I suspect verbal abuse will always be a part of remand life, no matter what the sexuality of the recipient; and unfortunate though it may seem, sexual abuse, harassment and teasing will exist in the community as well as in the prison. This application must be decided on the law and on the authority of previous bail decisions.

[9] I am not convinced that the seriousness of the charge is a valid objection to the award of bail in itself. Murderers and rapists awaiting trial abound in Fiji. Of far more relevance is the likelihood of the applicant appearing for his trial in the light of his background and social milieu.

[10] The applicant is not a flight risk and I am very cognizant of the length of time that the applicant must await trial, there being no trial dates available until 2013. I have ascertained from his brother surety that he is well aware of his responsibilities as surety.

[11] The applicant is admitted to bail with strict conditions:

1. Bail of $1,000 in his own recognizance;
   
2. Sureties (brother and sister-in-law) $1,000 each in their own recognizance;
   
3. Report to Totogo Police Station every Monday and Thursday between 6am and 6pm;
   
4. To live at a fixed address and not move from there without leave of the Court (Judge or Registrar);
   
5. Not to leave greater Suva area (Nausori to Lami) until the end of the trial;
   
6. To report to Court every time his case is called;
   
7. Not to contact by any means (personally or electronic) any potential prosecution witness.
   
8. To leave 2 telephone contact numbers;
   

Paul K. Madigan
JUDGE

At Suva
6 March 2013