State v Kaulawe [2011] FJHC 336; HAC073.2008 (8 June 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 073 OF 2008

STATE

vs

1. TEVITA KAULAWE
2. KALIVATI TABUA
3. NIKOTIMO RATUMAINABUKELEVU
4. MISIWENI VUILAMI
   

Mr. S. Qica for the State
All Accused in Person

Date of Hearing: 01, 02 and 06 June 2011
Date of Sentence: 08 June 2011

SENTENCE
[Sacrilege and Arson]

[1] Tevita Kaulawe, Nikotimo Ratumainabukelevu and Misiweni Vuilami, you have been found guilty by this Court after trial of one charge of sacrilege and one charge of arson. The charges you are convicted of are:

FIRST COUNT

Statement of Offence

SACRILEGE: Contrary to section 298 of Penal Code, Cap. 17.

Particulars of Offence

TEVITA KAULAWE, KALIVATI TABUA, NIKOTIMO RATUMAINABUKELEVU and MISIWENI VUILAMI on the 10th day of May 2008, at Lautoka in the Western Division, broke and entered a place of divine worship namely Gangaiyaman Temple and stole therein 2 money box containing $70.00 cash and a radio valued at $120.00, to the total value of $190.00, the property of Gangaiyaman Temple.

SECOND COUNT

Statement of Offence

ARSON: Contrary to section 317(a) of the Penal Code, Cap. 17.

Particulars of Offence

TEVITA KAULAWE, KALIVATI TABUA, NIKOTIMO RATUMAINABUKELEVU and MISIWENI VUILAMI on the 10th day of May 2008, at Lautoka in the Western Division, willfully and unlawfully set fire to the Gangaiyaman Temple, causing damages to the building and its contents to the value of $80,000.00, the property of Gangaiyaman Temple.

[2] Kalivati Tabua, you entered a plea of guilty to both charges and were convicted before trial.

[3] The facts agreed by you Tabua, and brought out at trial are that during the night of 9 and 10 May 2008, the four of you spent the night drinking homebrew and at about 5.00am on the 10th you went looking for money to buy beer. You approached the Gangaiyaman Temple situated in Field 40, Lautoka and you used an iron rod to break open the door of the temple and you entered. One of you stood guard at the door, while the other three went in to the prayer room. They lit candles as it was dark. Two money boxes containing $70 cash and a portable radio valued at $120 were taken away from the temple. Before leaving two of you set fire to material in the temple starting a fire. The fire spread rapidly and photographs exhibited show complete destruction of the temple. All of you were later arrested and you co-operated with the Police and made admissions in interviews under caution.

[4] Tevita Kauwale, you are 25 years old and you previously worked as a carpenter. You have been educated to Form 6 level but unfortunately you have previous convictions for damaging property, and unlawful use of a motor vehicle. You express remorse and ask for forgiveness and a second chance. Your parents are unemployed. You are currently serving a term of imprisonment.

[5] Kalivati Tabua, you are 23 years old living with your de facto wife and a 3 year child. You previously worked at F.S.C. having left school at Form 3. You are a prisoner serving time for robbery with violence. You express great remorse for these crimes and ask for forgiveness.

[6] Nikotimo Ratumainabukelevu, you are 21 years old; you previously worked for a swimming pool manufacturer. You have been educated to Form III level. You have no previous convictions nor any pending criminal cases. You tell the Court that, you and your wife are expecting your first child in two month's time. You ask for forgiveness and another chance.

[7] The fourth accused has been absent throughout the trial and was not present to mitigate.

[8] Sacrilege is a serious offence. It shows complete disregard for and contempt for other people's religious buildings. In Fiji where there are major religious denominations living together, it is most important that tolerance of each others religions and their fixtures be respected and protected. As Shameem J. said in Filimoni Vetau (2003) HAA 54/03 "it is an offence far more hurtful to a person than a theft in a house. Religion and faith are of paramount importance to all our communities. Offenders who insult the faiths of the community, who fail to show others they themselves expect to receive should be given custodial sentences which reflect society's disapproval of such behaviour". She went on to find that 15 months imprisonment for a tempted church goer was right in principal.

[9] The maximum penalty for sacrilege under the Penal Code is fourteen years imprisonment. The acts committed by you at this temple are more serious than a "tempted church goer". The four of you, ablaze with home brew (which is no excuse) forced entry into the temple and took away money boxes containing $70 so that you could buy beer. It is petty theft of monies obviously held dear to the members of this temple and a gross violation of a religious community's shrine.

[10] For this offence, I take a starting point of three years imprisonment. Apart from the aggravating elements of breaking and entering and theft there is nothing further to add. I am aware that you each played different roles in this affair, but you were all

acting in concert and as such you must each bear the responsibility of each other's actions. You are each sentenced to three years for sacrilege.

[11] The offence of arson is far more serious – it attracts a maximum term of imprisonment of life. In the case of Malugu (2010) HAC 48/09, Temo J. took a starting point of 3 years for setting fire to PWD sheds after a drinking party causing $17,000 worth of damage. The damage done to this temple was in the region of $80,000. I accept that none of you went to the temple to set fire to it; you merely wanted more beer money and lighting the fire was afterthought on fleeing the premises. For this offence, I take a starting point of three years imprisonment and that will be served concurrently with the three years for sacrilege.

[12] Tevita Kaulawe, you do not have the luxury of a clear record to afford you any discount from your term of three years. Nor do you have any compelling mitigation apart from your expressed remorse and your wish for forgiveness. For that I deduct 6 months from your sentence meaning you will serve a total term of two years and six months. You will serve a minimum of twenty months before being eligible for parole. This term will be served concurrently with the sentence you are currently serving.

[13] Kalivati Tabua, you have the advantage of having entered a plea of guilty, which although at a very late stage (just before trial) indicates a very real expression of remorse. For that plea and your other mitigation I deduct one year from your term of three years, meaning you will serve a term of imprisonment of two years.

[14] Nikotimo Ratuninabukelevu, you have no previous convictions and you are still a young man. You have a new family to care for. You ask for forgiveness, but you have shown very little remorse. Little purpose will be afforded to either you or the community if you serve a term of imprisonment at your relatively young age. I suspend your term of imprisonment of three years for a period of two years. (Suspension explained).

[15] Misiweni Vuilami, you are being sentenced in your absence. You have not been present throughout your trial, nor have you been able to put your mitigation before the Court. Your sentence of three years will run from the date you are re-arrested and you will serve a minimum of two years before you are eligible for parole.

Paul K. Madigan
Judge
At Lautoka
8 June 2011