State v Lesikilevuka - Sentence [2022] FJHC 45; HAC077.2021LAB (11 February 2022)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 077 OF 2021LAB

STATE

V

KELEVI BULIVOU RATUMAINACEVA LESIKILEVUKA

Counsels : Ms. M. Lomaloma for State
Ms. S. Devi for Accused

Hearings : 31 January and 7 February, 2022
Sentence : 11 February, 2022

SENTENCE

1. On 31 January 2022, in the presence of his counsel, the following information was read over and explained to the accused:
   

COUNT ONE

Statement of Offence

BURGLARY: Contrary to Section 312 (1) of the Crimes Act 2009.

Particulars of Offence

KELEVI BULIVOU RATUMAINACEVA LESIKILEVUKA, on the 20^th day of November 2021 at Seaqaqa, in the Northern Division, entered into the SEAQAQA BARBER SHOP as a trespasser with the intention to commit theft therein.

COUNT TWO

Statement of Offence

THEFT: Contrary to Section 219 (1) of the Crimes Act 2009.

Particulars of Offence

KELEVI BULIVOU RATUMAINACEVA LESIKILEVUKA, on the 20^th day of November 2021 at Seaqaqa, in the Northern Division, dishonestly appropriated 1 x JBL speaker and $3.80 cash, the properties of DHARAM JEET PRASAD with the intention of depriving DHARAM JEET PRASAD of his properties.

COUNT THREE

Statement of Offence

ATTEMPTS TO COMMIT ARSON: Contrary to Section 363 (b) of the Crimes Act 2009.

Particulars of Offence

KELEVI BULIVOU RATUMAINACEVA LESIKILEVUKA, on the 20^th day of November 2021 at Seaqaqa, in the Northern Division, willfully and unlawfully set fire to the curtains which was so situated in the SEAQAQA BARBER SHOP that the SEAQAQA BARBER SHOP was likely to catch fire from it.

2. He said, he understood the counts in the information, and he pleaded guilty to the same. He said, no-one forced him to plead guilty to the charges, and he did so voluntarily. On 7 February 2022, the prosecution read the summary of facts in court. Briefly, they were as follows. The accused, at the time of the offence on 20 November 2021, was 20 years old. He lived with his parents at Coloci, Seaqaqa. He reached Form 6 level education, but was unemployed at the time. The complainant was Mr Dharam Jeet Prasad, and he was 47 years old. He is a businessman and operated a barber shop at Seaqaqa.
   
3. On 20 November, 2021, between 11pm and 12am, the accused climbed a fence and went towards the complainant’s barber shop at Seaqaqa. He went towards a side window, removed 4 louver blades from the same and climbed through the same into the shop. He went there as a trespasser with intent to steal. The accused searched inside the shop, and found a JBL speaker, valued at $79, and $3.80 (cash) in the shop. He later tore some pages out of the telephone directory, placed them under the shop’s curtain and set fire to the same. Smoke started to develop in the shop. The accused then fled through the window, taking the JBL speaker and $3.80 with him.
   
4. On 22 November 2021, the complainant opened his shop and found it was broken into, and his JBL speaker and $3.80 cash stolen. He reported the matter to police. An investigation was carried out. The JBL speaker was recovered. The accused was caution interviewed by police and he admitted counts no. 1, 2 and 3 to them. He was later charged and produced at Labasa Magistrate Court on 29 November 2021.
   
5. Through his counsel, the accused admitted the above summary of facts. He also admitted the statement of offences and particulars of offences in counts no. 1, 2 and 3. As a result of the above admissions, the court found him guilty as charged on counts no. 1, 2 and 3, and convicted him accordingly on those counts.
6. The prosecutor said, he was a first offender. He had no challenge to his antecedent report and the victim’s impact report. Defence Counsel then presented his plea in mitigation. She said, the accused was 20 years old, single with no children. He reached Form 6 level education at Ratu Navula Secondary School, Nadi in 2018. He was unemployed. He was first offender and he pleaded guilty at the first call at the High Court. He co-operated with police at the caution interview, by admitting all the offences. He had been remanded in custody since 29 November 2021.
   
7. “Attempt to commit arson”, contrary to section 363 (b) of the Crimes Act 2009 carried a maximum penalty of 14 years imprisonment (count no. 3). The tariff for arson had been held to be a sentence between 2 to 10 years imprisonment: State v Seru & Another, HAC 32 of 2015S, High Court, Suva (21 September 2016). The sentence for attempted arson should be something similar, depending on the presences or otherwise of strong mitigating or aggravating factors.
   
8. “Burglary”, contrary to section 312 (1) of the Crimes Act 2009, carried a maximum penalty of 13 years imprisonment.
   
9. “Theft”, contrary to section 291 (1) of the Crimes Act 2009, carried a maximum penalty of 10 years imprisonment.
   
10. The aggravating factors in this case were as follows:

(i) The accused had no regards whatsoever to people’s property rights. In this case, the 47 year old complainant worked hard to set up his barber shop to earn himself a living. The accused showed no regard to that and offended against him.

11. The mitigating factors were as follows:

(i) At the age of 20 years, this was the accused’s first offence;

(ii) He pleaded guilty on first call in the High Court, and thereby saved the court’s time;

(iii) The complainant’s speaker, worth $79 was recovered. Only $3.80 was not recovered. He also co-operated with police.

(iv) Although he attempted to set fire to the barber shop, the damage done was minimal.

(v) He had been remanded in custody for 2 months 12 days.

12. I will start with count no. 3 (attempted arson), as it was the most serious offence. I start with a sentence of 2 years imprisonment. I add another 2 years for the aggravating factors, making a total of 4 years imprisonment. For time already served while remanded in custody, I deduct 3 months, leaving a balance of 3 years 9 months. For being a first offender, at the age of 20 years, I deduct 9 months, leaving a balance of 3 years imprisonment. For the damage to the barber shop been minimal, for the recovery of the speaker, and for co-operating with police during the investigation, I deduct another 6 months, leaving a balance of 2 years 6 months. For pleading guilty at the first call in the High Court, I deduct another 1 ½ years, leaving a balance of 12 months imprisonment. For count no. 3, I sentence you to 12 months imprisonment.
    
13. For the burglary charge (count no. 1), I sentence you to 6 months imprisonment.
    
14. For the theft charge (count no. 2), I sentence you to 3 months imprisonment.
    
15. The summary of your sentences are as follows:

(i) Count No. 1 : Burglary - 6 months imprisonment

(ii) Count No. 2 : Theft - 3 months imprisonment

(iii) Count No. 3 : Attempt to commit Arson - 12 months imprisonment

The above sentences are made concurrent to each other, making a final sentence of 12 months imprisonment.

16. Pursuant to section 26 (1) of the Sentencing and Penalties Act 2009, I suspend the above 12 months prison sentence for 2 years, effective from today. Given that this is your first offence, you co-operated with police during the investigation, the damage you caused the complainant was minimal and that you pleaded guilty on first call in the High Court, the above sentence is designed to punish you in a manner that is just, to protect the community, to deter others, to facilitate your rehabilitation and to signify that the court and community denounce what you did to the complainant on 20 November 2021.
    
17. Meaning of suspended sentence explained to accused.
    
18. You have 30 days to appeal to the Court of Appeal.
    

Salesi Temo

JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Labasa

Solicitor for the Accused : Legal Aid Commission, Labasa