Public Prosecutor v Tuku [2014] VUSC 161; Criminal Case 61 of 2014 (26 November 2014)

IN THE SUPREME COURT OF THE REPUBLIC OF VANUATU
CRIMINAL CASE No.61 OF 2014
Criminal Jurisdiction

PUBLIC PROSECUTOR

v

ROBERT CETI TUKU

Corum: V. Lunabek CJ

Counsel: Mrs Tabisa Harrison for Public Prosecutor
Ms Pauline Kalwatman for Defendant

Date of Plea/Hearing: 24 November 2014
Date of Sentence: 26 November 2014

SENTENCE

Robert Ceti Tuku, you are charged with one (1) count of arson, contrary to section 134 of Penal Code [Cap 135]. The particulars of the offence alleged against you are that sometime in or about 9 November 2011 at Volovuhu Centre School, West Ambae, you intentionally set fire to the office of that school causing the destruction by the fire of the filing cabinet, all office documents and a cash amount of Vatu 25,000 together with the school office building.

On Monday 24th November 2014, at 2.00PM o'clock at Saratamata you entered a guilty plea to the offence you are charged with. You appear today to receive your sentence.

The brief facts of your offending is this. On Wednesday 9 November 2011 at about 2.00am o'clock in the morning, you have entered into Volovuhu Primary School area. You went into the office of that school, you removed documents which were on the table. You then set fire on the documents and place them in the thatch roof of the school's office causing the destruction of the school's office and everything that were in it.

Mr Philip Tukunamol is the Head Master of the Volovuhu School. He occupied that office with the Zone Curriculum Advisor. Mr Philip Tukunamol is the complainant of this case. He filed the complaint against you on 18 November 2011. He stated that he is the head master of the school that on Wednesday 9 November 2011, at around 2.00am his office was burnt down.

He was asleep at his house, woke up at 3.00am by this time the school office had completely burnt down. At around 4.30am on 9 November 2011, he reported the matter to the Zone Curriculum Advisor Christian Tukunaimoli with whom they both agreed for the school to continue and that this arson issue would be dealt with by the school council. The school office was a temporary office with thatch roof and
bamboo wall. What were burnt down in the office were official documents such as receipt book with filing cabinet of an estimated cost of 115,000 Vatu and 25,000 Vatu cash.

On Thursday 10th November 2011 at 6.00 am in the morning, the very next day of the incident, you went to see Mr Takaro Raynold and confessed to him that you are the one who burnt down the office of the Volovuhu school

You were arrested on 14 November 2011. You made a written statement to the Police. In your statement, you confessed to burning down the office of the school on 9 November 2011 in the early hours of the morning. You were angry because you have two children in year 8 at Volovuhu Primary School and you heard they will not seat for their exam so you set fire on the office of the school.

The Law:

Section 134 of Penal Code Act provides: "134. (1) No person shall wilfully and unlawfully set fire to...any building or other property whatsoever which to his knowledge belongs to another.

Penalty: Imprisonment for 10 Years.

As you can now realise, setting fire to a building or property wilfully and unlawfully is prohibited by law. It is an offence and a serious one indeed. Its seriousness reflects the intention of Parliament (which makes the law) that in the most very serious cases of arson a maximum penalty of 10 years will be imposed.

Your sentencing today will be based on the facts and circumstances of your offending at the time of its commission. When I consider your sentencing, I take into account of the submissions made by the Public Prosecutor and the case authorities in support of the Public Prosecutor's submissions. I also take into account of the submissions made by your lawyer on your behalf and case authorities in support. I further take into account of your antecedents, personal circumstances and mitigating factors.

It is noted that your sole reason for burning down the office was because you have received information the year 8 students including your two daughters (Prescilla and Marie Noelle) will not seat the national exams. Your felt deprived, your hardwork wasted and you immediately undertook the offence of setting Fire on the office of the school.

This is a deplorable offence. The court on behalf of the society condemns in the strongest terms your offending. You need to understand that you cannot take the law into your own hands to do justice to yourself or as you like. I note your frustrations of hearing that yours daughters were not going to seat for year 8 exams. However, that is not an excuse or a licence or permission for you to behave as you did on 9 November 2011 at 2.00am in the early morning.

This type of offending warrants custodial sentence. As the Court of Appeal stated in the case of Worashese –v- Public Prosecutor [2010] VUCA 11; Criminal Appeal Case 01 of 2010 (30 April 2010)"... It is clear to this court that the crime of arson in this jurisdiction is becoming more prevalent... It is quite proper therefore for the judge to give weight to the sentencing factor of deterrence to discourage this form of offending... This court accepts that a custodial sentence must be imposed for this offence and it cannot be said that the sentence imposed by the judge was wrong in principle or manifestly excessive"

In the present case, your offending is aggravated by the following factors:

• A degree of premeditation.
• Unlawfully entering the school area.
• Offence occurred at night.
• Loss of building and its contents estimated at Vatu 140,000.
• Office used to administer, promote and enhance education for children.
  

In this case, you are sentenced to three (3) years imprisonment as a starting point.

Your lawyer informed the court that you are 36 years of age. You accept that the offence of arson involving the destruction of the school office, school documents everything that was in the office is a serious offence. During the time of offending you have two (2) daughters attending year 8 at that school. You accept also the brief facts provided by the Public Prosecutor.

You are now a father of 3 children. You reside with your de facto partner at Tavala village, West Ambae in your own house.

Two (2) of your daughters, namely Priscilla and Marie Noelle are born from your former partner. Both Prescilla and Marie Noelle are 16 years of age. They were 13 years at the time of incident in November 2011. They are both attending secondary schools, one at Tebakor Junior Secondary School, Port Vila and the other at Santo East Secondary School in Luganville, Santo.

Your third child is 6 years old and attends child care at Tavala village. You are the 5th child of 10 siblings. Your own parents struggle to get the ends meet the daily needs. You understand the harshness of life therefore you seek to make a change in life by investing in the education of your children.

You are a hardworking man, a farmer, you own a cocoa and coconut plantation at Tavala village. You produce coprah every two weeks to earn monies to pay for the school fees of your daughters and to meet the daily needs of your family. You also look after your aged parents who reside with you at Tavala village.

You attend apostolic church regularly and assist in church understandings. You have a role as security for the community chiefs.

Your lawyer informs the court that in future, you intend to expand your cocoa and coconut plantations and to support your children in their education. You also plan to construct a permanent house for your family.

In mitigation for your sentencing, I consider the following factors:

1. You are a first time offender (despite the aiding assault committed in theft 1990's in your younger age).
   
2. You plead guilty at the first time opportunity given to you by the court. You are entitled to 1/3 of the 3 years terms of imprisonment.
   
3. I consider that you committed this offence in November 2011. It is now 3 years when you are brought to court and sentenced. I give you an allowance of 6 months due to 3 years delay (from November 2011 – November 2014).
   
4. I consider that you were remorseful for what you did when you realise that it was wrong when on the next date you confessed to the chairman of the school that it was you who burnt down the school. I consider also that you cooperate with the police and admitted to them your offending. I consider also that you have rebuilt the office you burnt down on 9 November 2011. You have purchased 4 archives in Port Vila that were shipped to West Ambae to replace the filing cabinet. I also consider that you have repaid or refunded Vatu 25,000 cash monies destroyed by the fire. I give you an allowance of 6 months for these mitigating factors.
   

I finally give an allowance of 3 months for the custom compensation you have performed to the school authorities and community in the forms of custom mats, custom laplap (food) and 2,000 Vatu cash.

On balancing between aggravating and mitigating factors and after cross-referencing between each others, your end sentence is of 9 months imprisonment.

In the circumstance of your case, I consider appropriate to suspend your imprisonment term of 9 months. I suspend it for a period of 1 year.

Your sentence is 9 months imprisonment suspended for 1 year.

You have 14 days to appeal this sentence if you are unsatisfied with it.

DATED at Saratamata, Ambae, this 26th day of November 2014

BY THE COURT

Vincent LUNABEK
Chief Justice