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State v Chand - Sentence [2022] FJHC 59; HAC250.2020 (18 February 2022)

HIGH COURT OF FIJI

AT SUVA

[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. HAC 250 OF 2020

STATE

V

AMAN CHAND

Counsel: Mr Z Zunaid for the State

Mr R Goundar for the Accused

Date of Hearing: 7 February – 9 February 2022
Date of Judgment: 15 February 2022
Date of Sentence: 18 February 2022

SENTENCE

[1] The Accused was convicted of attempted arson after trial.

[2] The maximum penalty prescribed for attempted arson is 14 years imprisonment.

[3] In State v Seru [2016] FJHC 841; HAC32.2015 (21 September 2016), Madigan J observed that there was no predetermined tariff for attempted arson, but suggested the following guidelines at [16]:

If then there is an attempt to burn down a building then an appropriate sentence would start from a term of two years. If the attempt is to harm persons inside the building or is reckless as to whether there would be harm to inhabitants then the sentence should be one of at least 4 years. If the attempt is an attempt to effect large scale arson, for example on a large scale shopping area or a sensitive Government building then the sentence could be in the range to 7 to 10 years. (See Damodidu & Anor v R. v R.C.A. (1978) FLR 93).

[4] Sentences have been suspended in cases of attempted arson where the offenders had taken responsibility for their crime by pleading guilty early and expressing remorse. (State v Bolaciri [2019] FJHC 1184; HAC79.2019 (20 December 2019), State v Nuku [2020] FJHC 1060; HAC372.(918 (9 December 2020))

[5] In this case, there was an attempt to burn down a dwelling structure. The structuremade rrugated iron andn and timber. The Accused may have had no intention to harm the occupants ants of the house, but he was reckless as to the risk of damage to the building. His parents and brother resided in the adjoining flats. A starting point of 2 years is appropriate.

[6] I take into account that no pre-planning was involved in committing the crime. When the Accused returned home drunk he got upset with his brother for taking all the parking space and not leaving any space for the Accused to park his vehicle. They argued and swore at each other. When the complainant reminded the Accused that the property was not his, the Accused retaliated and in anger lit the furniture inside his flat that was attached to his brother’s flat. Fortunately, the complainant managed to extinguish the fire and prevent it from spreading to the rest of the premises. Certainly, no financial motive was involved to commit the crime.

[7] According to the fire examiner, the damage to the building structure was not significant.

[8] The Accused is 34 years old. He works as a truck driver and financially supports his elderly parents. He is a first time offender but he is not a young offender. However, I give considerable weight to the Accused’s previous good character as a mitigating factor.

[9] The aggravating factors are that the Accused was drunk and that he breached the trust of his brother who gave his flat for him to reside rent free. The offence is domestic violence.

[10] I consider deterrence is the primary purpose of sentence. The court has a duty to send a clear message that setting fire with the intention to burn down a dwelling house to resolve family disputes will not be tolerated. Fortunately no one was physically harmed and the damage done to the building was minimum.

[11] After taking all these circumstances into account, the Accused is sentenced to 12 months imprisonment.

[12] The Accused has spent 3 months in custody on remand. The remaining term for him to serve is 9 months imprisonment. I have considered suspension and decided not to suspend the sentence in order to give effect to the principle of deterrence.

[13] A DVRO with standard non-molestation conditions is issued against the Accused for the protection of the complainant.

. ...........................................
Hon. Mr Justice Daniel Goundar

Solicitors:
Office of the Director of Public Prosecutions for the State
Ravinesh Goundar Lawyers for the Accused