State v Naigulevu [2009] FJMC 10; Criminal Case 80.2009 (20 July 2009)

IN THE FIRST CLASS MAGISTRATES COURT
AT NAUSORI
FIJI ISLANDS

Criminal Case # 80 OF 2009

THE STATE

V

APENISA NAIGULEVU

Prosecution: Police, for the State
Accused: Legal Aid

SENTENCE

[1] The accused is charged with Arson contrary to Section 317 (a) of the Penal Code, that he on the 30th day of May 2009 at Waileka, Wainibuka in the Central Division wilfully and unlawfully set fire to a dwelling house valued at $20,000.00 the property of Ilisoni Koroitukana ("the complainant").

[2] The accused pleaded guilty to the charge after being given legal advice by the Legal Aid Commission.

[3] The facts of the case can be summarised as follows; that the accused unlawfully set fire to the 3 bedroom house of the complainant on 30th May 2009. The accused upon arriving at the house of the complainant broke some lourve blades. He then entered the house after the wife of the complainant opened the front door. The accused was armed with a cane knife and a long neck beer bottle containing kerosene. The accused swung the knife at the wife of the complainant who jumped back and avoided the knife. The couple who owned the house pleaded with the accused not to harm them and their family. The accused then poured kerosene and lit a match and set the house on fire. The complainant and his wife fled the house, into a nearby bush. They then saw their house burn down to the ground with all its belongings.

[4] The Legal Aid Commission has submitted a written plea in mitigation which the court has considered. The mitigation submission seeks that the court considers the following in sentencing the accused:

(a) The accused is 40 years old, married with no children.

(b) He supports his wife by subsistence farming. The accused is the sole bread winner.

(c) The accused has pleaded guilty and saved the courts time and full day trial.

(d) The accused had been drinking with complainants two sons and that the two had threatened to burn the accused’s house. The accused had an on-going dispute with complainant’s family as the wife of the accused left him while he was in prison and had an affair with the complainant’s family.

(e)The accused in a drunken state got angry with the complainant and his family for the loss of his wife and committed the offence in anger.

(f) The accused is sorry for what he has done and will not re-offend.

(g) The accused seeks mercy of the court and seeks a lenient sentence

[5] Arson is a serious offence which carries a maximum penalty of life in prison. The tariff for arson is 2-4 years imprisonment (Kelemedi Lagi & Others v. State [2004] HAA004/04S, Aporosa Tuitokova & Others v. State [2005] HAA67. Where a person lights a fire knowing that the result of such reckless conduct would cause a fire, sentences of around 3 years imprisonment have been imposed. A 2 year custody sentence in Amina Begum Koya v. State (1998) CAV0002/97 was upheld on appeal. In that case a fire was lit as part of an insurance fraud. Where the harm done is minimal, there have been sentences passed of 15 months imprisonment (State v. Inia Vulaono HAC 7/90).

[6] The Court will start with a sentence of 3 years 6 months imprisonment for the offence. The Court will explain later in this sentence its reasons for starting on the higher tariff for the offence.

[7] The aggravating factors are that accused came to the complainant’s house drunk, with a knife to ward them off. He ignored the pleas of the couple not to harm them or their family. The accused knew that his actions will result in the loss of the complainant’s family house and belongings. The accused poured kerosene and burnt the house and the belongings of a family. The accused should know that people work hard to build their houses and accumulate their belongings.

[8] The accused’s character does not entitle him to any discount. The accused is not a first offender. He has 5 other previous convictions. In 2007, the accused was convicted for Arson and sentenced to 2 years 8 months imprisonment. The Court notes that the accused straight after serving one sentence for arson has committed another one. For this reason the Court started with the higher tariff for the offence. The Court notes that the accused has no regard for other people’s property and belongings. He sees fit to burn other people’s houses and belongings. He states that he acted to calm his anger for the loss of his wife. The ghastly action of the accused is condemned by the court. The loss of the house and belongings of an indigent farmer and his family cannot be correctly valued. It is their blood and sweat, their life time savings. For the aggravating factors and the fact that the accused fails to rehabilitate and mend his ways. The weighty aggravating factors warrant an increase in the sentence by 1 year 6 months.

[9] Your early guilty plea and the other mitigation entitle you to some discount. The Court is of the view that your mitigation allows you discount for 6 months.

[10] Apenisa Naigulevu after taking into account your mitigation, the offence you have committed and the aggravating factors. The Court feels that this sentence should deter you and likeminded persons in our community from destroying other people’s property. You must learn to control your emotions and value life and others property and hard work. This Court is mindful and would like to point out what the Justices of Appeal stated in Singh v State [2004] FJCA 8; AAU0008.2000S (19 March 2004) that: "deterrence and retribution are not the only factors to be considered when sentence is imposed. In a civilized society rehabilitation is also a matter of importance. Balancing the requirement for deterrence and retribution against rehabilitation is often one of the more difficult tasks which Judges face. In the long term society is best served not only when behaviour of the kind under consideration is deterred but also when the offender is rehabilitated to become a productive and non threatening member of the community." With this in mind the Court seeks that the Prison Authorities provide adequate counselling to the accused and see that he is placed under a programme so that he rehabilitates and becomes a productive and non threatening member of the community.

[11] The Court sentences you to 4 ½ years imprisonment. 28 days to appeal.

Chaitanya Lakshman
Resident Magistrate

20/07/09