State v Tuinakelo - Sentence [2015] FJHC 151; HAC025.2014 (5 March 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION.

Criminal Case No. HAC 025 of 2014

STATE

v.

APETE LIU SERU TUINAKELO

Counsel: Ms S. Kant for State.
Mr. J. Savou (L.A.C.) for the accused.

Date of conviction: 4 March 2015.
Date of Sentence: 5 March 2015.

SENTENCE

Apete Liu Seru Tuinakelo, you have been convicted by this Court after trial of the offence of arson.

2. The facts of the crime were that in December 2013 you were employed as a labourer by C.D.P Services in Walu Bay. You had been there for about 5 months when in the early hours of 12 December 2013 you were helping to load a vehicle parked at the door of the premises. There had been reports that night of chemical spillage from a drum placed in the compound. One driver had tried to move the drum in question but the solvent liquid had splashed out into his face and he had to wash it off. When the foreman heard of this he warned all of the workers including yourself to take extra precautions including forbidding you to light a naked flame and not to smoke.

3. It was your habit to smoke outside in the forecourt where the drums in question were stored. When the vehicle was being loaded there was a strong smell of solvent pervading the premises. You took time to rest and went outside with a colleague to smoke. Knowing the risk of lighting a flame in the circumstances that you were aware of, you did so and threw the match into a drain which immediately ignited solvent that had leaked into the drain. The fire spread from the drain to C.D.P's rented premises and there was an intense conflagration which was eventually put out by the Fire Services. In your interview with the Police you admitted you knew that there had been a spillage and you admitted that it would have been sensible to smoke as far away from that area as possible. You didn't though and you were therefore reckless in the extreme in dropping the lit match that night and in law this recklessness amounts to "willful" as an element of the crime.

Mitigation

4. Your counsel in a very wellcrafted plea in mitigation tells me that you are 25 years old, single and with a clear record. At the time of the fire you were studying Marine Engineering at FNU and you were working to support yourself while studying. You lost your parents at a very early age and you were raised by your grandfather who has a sugarcane farm in Ra. He is still willing to support you. Although you are technically guilty of this crime because of your sheer recklessness, you are very remorseful for what had happened and this Court believes you when you say you had no intention of starting a fire and you were as shocked as anybody else at the outcome of your folly. You were quite co-operative in the investigation, you never denied it was you that discarded the match and you understandably stated that you had no idea that the drain was full of solvent. You must however bear the consequences of your reckless and dangerous act because the law demands that and the community would expect that you be penalized for what you did.

Sentence

5. The tariff or suggested range of sentences for this offence is between two to four years. This was decided by Shameem J. in Lagi [2004] FJC 69. This is still the tariff and the top of the tariff range would be passed for intentional arson where human lives were imperiled. In a case such as this which could be termed as "accidental recklessness" then a sentence at the lower end of the range is appropriate. Very much in your favour you have a clear record in your young life; you wish to better yourself through study; you are very remorseful for what happened and you have always admitted that you were the one discarding the match.

Conclusion

6. In the circumstances I pass a sentence of two years upon you and with the prospect that you will from henceforth lead a stable and responsible life, I order that the sentence be suspended for a term of two years.

7. I am requesting your counsel to explain to you what the implications of a suspended sentence are and I trust you will abide by those terms.

P.K. Madigan
Judge

At Suva
5 March, 2015.