State v Rusa [2010] FJMC 149; Criminal Case 45.2010 (9 March 2010)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No: 45 of 2010

STATE

V

1. NIKOTIMO RUSA
2. JIMI KOI
3. TANIELA LUI
4. SAIMONE NAURA

For Prosecution: Inspector Harish
All Accused: Present in Person

BAIL RULING

1. You, Nikotimo Rusa, Jimi Koi, and Taniela Lui filed joint written application for bail.
   
2. According to sec. 14 (1) of the Bail Act No. 26 of 2002, accused person can make any number of bail applications as long as they are not frivolous or vexatious.
   
3. According to sec. 30 (7) of the Bail Act, the court which is reviving the bail application have to satisfy that there are special facts or circumstances to justify the review or fresh bail application.
   
4. Following grounds set out as grounds for seeking bail by all three accused.
   

a). You are sole bread-winners of the family.

b). Second and third accused have to look after their grand-parents.

c). First accused has a 07 years old son who is schooling and wife is unemployed.

d). You are casual workers.

e). Apart from that you sell food parcels and have small farms.

f). You have not breached any bail conditions in other cases.

Case background

5. This case was first called in this court on 13th January 2010. All four accused after waiving their right to counsel, plead guilty to the charge. Then this case was adjourned for sentencing. On the day the sentencing was due, a duty solicitor appeared on behalf of all the accused and informed the court that accused are requesting their plea to be vacated. When asked under which provision he is making that submission, duty solicitor ask time to support his application. Court granted time to file written submission on that issue with supporting legal authorities. On the next date, no counsel appeared on behalf of the accused and the accused were granted further time. On 10th February 2010, another counsel from legal aid commission appeared on behalf of the accused and requested further time to file written submission. On the next date again no counsel appeared on behalf of the accused. All the accused inform the court that they are willing to file written submission on behalf of them. Upon their application, this case was called again in court on 23rd February 2010. Instead of filing written submissions on the issue, first three accused have filed a joint application for bail.
   
6. On 23rd February 2010, another counsel from legal aid commission appeared on behalf of the third accused and informed the court that he was not aware about the written submission and promises given to the court by the previous duty solicitors. Court allowed the counsel to go through the court record in open court. However, after finding that the third accused had lied to him, counsel made application to withdraw from the case. Third accused in open court withdrew his instructions given to the counsel. Later on all three accused inform the court that they are representing themselves and fourth accused inform his willingness to apply for legal aid. First three accused, undertook to file written submissions on their behalf.
   

First accused

7. You Nikotimo Rusa have 16 previous convictions and you have admitted the list when you pleaded guilty for the charge. Your previous convictions are ranging from 2002 to 2009. You have 06 previous convictions for larceny and 05 for burglary. One of your previous convictions is for Robbery with violence. You are a repeat offender. Within a period of 7 years, you have managed to commit 16 crimes and out of which, 05 are for burglaries, 06 are for larceny and you have served 18 months imprisonment for a robbery with violence. You did not commit any offence during the period of 2006 to 2009, not because you wanted to lead a good life but because you were serving a 03 year imprisonment term. This same observation applies to the year 2004 also. This simply means that from year 2002 to date, you are repeatedly committing crimes without any regard to the law and order of the country and you have made no attempt whatsoever to correct yourself. Hence, I consider that you are a serious threat to this Fiji community.
   
8. Your history is the best evidence for your character. You have committed this present offence whilst there is a suspended sentence in operation. Thus, there is no evidence for me to satisfy myself that you would not commit any offence if enlarged on bail.
   
9. Apart from that you have a previous conviction for forfeiture of bail bond. This shows that you cannot be trusted.
   
10. Considering all those grounds I refuse to enlarge you on bail.
    

Second accused

11. You also are a repeat offender. According to the previous convictions list you have 11 previous convictions ranging from 2000 to 2007. You have 3 convictions for Assault Occasioning Actual Bodily Harm. This is evidence of your tendency for violence. Apart from that you have previously convicted for breach of curfew order imposed on you.
    
12. You also are not a person who has shown willingness to correct your past mistakes of life. Hence, I consider you as a threat to the protection of Fiji community and refuse to enlarge you on bail.
    

Third accused

13. You are not a first offender and you have 3 previous convictions. One of them is for 'Robbery with Violence". Since you have committed your second crime whilst there was a suspended sentence in operation, your suspended sentence had been activated by the court. You have committed this offence whilst there is a binding order in operation. Your history is evidence for your unruly behaviour and lack of respect for the law and order of the country.
    
14. I don't have any assurance that you will not commit any other offence, if enlarged on bail. Therefore, I refuse to enlarge you on bail.
    
15. All of you have 28 days to appeal.
    

On this Tuesday the 09th day of March 2010.

Kaweendra Nanayakkara
Resident Magistrate