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State v Lakaia [2010] FJHC 366; HAC023.2010 (27 August 2010)

N THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 23 OF 2010

BETWEEN:

STATE

AND:

SAMUELA LAKAIA

Counsel: Mr. Kaisamy - for the State
Mr. Lee - for the Accused

Date of Hearing: 26 August 2010
Date of Sentencing: 27 August 2010

SENTENCE

BACKGROUND

1. The Director of Public Prosecutions had preferred a charge against you, in the following manner.

Statement of Offence

ARSON: Contrary to Section 362 (a) of the Crimes Decree No. 44 of 2009

Particulars of Offence

SAMUELA LAKAIA on the 11th day of July 2010 at Sava Rakola, Dogoduki, Labasa in the Northern Division willfully set fire to the dwelling house of Robert Ellen.

2. You are charged under section 362 (a) of the Crimes Decree. Section 362 (a) states as follows:

"362. A person commits an indictable offence if he or she willfully and unlawfully sets fire to-

(a) Any building or structure (whether completed or not)."

SENTENCE

3. Now I consider your sentence as per section 362 (a), any person who commits an offence of arson can be imprisoned for life.

4. Tariff to the offence in the case of Lagi v The State [2004] FJHC 69; HAA004J.2004S (12 March 2004) her Ladyship Justice Shameem after deliberating on the matter concluded that the tariff for arson is 2 to 4 years imprisonment.

5. Moreover in the case of State v Malugu [2010] FJHC 78; HAC048.2009S (5 March 2010) his Lordship Justice Salesi Temo gave further insight when delivering his judgment on the offence of arson.

"The maximum sentence for arson is life imprisonment. However, the tariff is a sentence between 2 to 4 years imprisonment. Sentence of 2 years have been given where there are no danger to human life, and sentences of 4 years prison were given when the house was occupied and there was reckless disregard for human life: per Her Ladyship Justice Shameem in Aporosa Tuitokova & Others vs The State, Criminal Appeal No. HAA 0067, 70 & 73 of 2005S, High Court, Suva. The actual sentence given will depend on the presence or otherwise of strong mitigating or aggravating factors."

Then he sentenced the accused to 2 years imprisonment.

6. However in the case of Wise v State [2008] FJHC 316; HAA078J.2008S (10 November 2008) her Ladyship Justice Shameem reduced a two and a half year sentence given by the magistrate to 18 months imprisonment.

"I do consider that the 2 ½ year was in excess of the appropriate sentence for this case, and on a starting point of 12 months imprisonment the correct sentence should have been 18 moths imprisonment. The circumstances are less serious than in the Lagi case."

7. Considering the section and above cases the tariff to this offence is between 2 years to 4 years imprisonment.

8. I commence your sentencing at 3 years.

AGGRAVATING FACTORS

9. I consider the following factors as aggravating factors.

1. You have completely destroyed the house belonging to Robert Ellen.
   
2. As per your submission Robert Ellen who had sought the comfort and peace of this country by choosing Bekana Island to build his "Sanctuary" here in Fiji.
   

100. You cannot repay or compensate to the victim.
     

10. Considering the above aggravating factors, I increase three years. Now your sentence is 6 years imprisonment.

MITIGATING CIRCUMSTANCES

11. Now I consider the mitigating circumstances.

1. You are a first offender.
   
2. You have pleaded guilty on a very early opportunity.
   

100. You are married with two children.
     

4. You are remorseful.
   
5. You were in remand for one and half month.
   

12. Considering your mitigating circumstances, I reduce 3 years now. Your sentence is 3 years.

13. Considering the nature of the crime, that you have destroyed a person's home, who loved the peace and tranquility of this beautiful Fiji, I do not intent to suspend your sentence.

14. Your sentence is 3 years imprisonment.

15. 30 days to appeal.

S. THURAIRAJA
JUDGE

At Labasa
27 August 2010