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State v Bulitavu - Sentence [2022] FJHC 730; HAC52.2022 (16 November 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION


Criminal Case No.: HAC 52 of 2022


STATE


V


NEMANI BULITAVU AND ANOTHER


Counsel : Mr. J. Nasa for the State.
: Ms. N. Sharma for the Accused.


Date of Submissions : 16 November, 2022
Date of Sentence : 16 November, 2022


SENTENCE


  1. The accused is charged with the following offences as per the information filed by the Director of Public Prosecutions dated 13th July, 2022:

FIRST COUNT

Statement of Offence

ARSON: Contrary to section 362 (a) of the Crimes Act 2009.


Particulars of Offence

NEMANI BULITAVU and another on the 7th day of March 2022, at Nadi, in the Western Division, willfully and unlawfully set fire to the stall property of AJAY KUMAR.


SECOND COUNT

Statement of Offence

ARSON: Contrary to section 362 (a) of the Crimes Act 2009.


Particulars of Offence

NEMANI BULITAVU and another on the 7th day of March 2022, at Nadi, in the Western Division, willfully and unlawfully set fire to the restaurant property of RISHAL CHANDRA.


  1. This file was first called in the High Court on 20th April, 2022, after numerous adjournments since the information and disclosures were not filed on 22nd September, 2022 the accused pleaded guilty in the presence of his counsel.
  2. On 20th October, 2022 the accused admitted the summary of facts read by the state counsel. The brief summary of facts is as follows:

The first complainant is Ajay Kumar (thereafter referred as “the first complainant”), 46 years of age, a salesperson by occupation and resides at Malawai, Votualevu, Nadi.


The second complainant is Rishal Chandra (hereinafter referred as “the second complainant”), 29 years of age, a businessman by occupation and resides at Lot 31, Uci Crescent, Waqadra, Nadi.


First count

The first complainant works as a salesperson for Westfield Garden Solutions. Their business owns a stall at the Namaka Flea Market. On 5th March 2022 at around 2.30pm, the first complainant locked their stall after they closed for business. The stall was 3 meters x 3 meters and contained items to the total approximate value of $45,000.00. The approximate building cost of the stall was $18,000.00 which included the cost of building materials and labour. On 7th March, 2022 at around 7.30 am, the first complainant received a phone call from one Febrian Verma that their stall had caught fire. The first complainant immediately visited their stall following receipt of Febrian Verma’s call and discovered that it had been fully burnt.


Second count

The second complainant is a businessman and operates a restaurant and kava bar at Lot 3, Transville Road, Namaka called “Chill Zone Café & Kava Bar’. On 7th March 2022 at about 2:15 am, the second complainant received a phone call from a lady who advised him that his restaurant and kava bar was on fire. Upon receiving the said call and information, the second complainant immediately attended to his restaurant and kava bar with his father.


Upon their arrival, the second complainant noticed that his whole business establishment was on fire. The restaurant and kava bar was 12 meters in width and 15 meters in length. It contained 3 x billiard tables worth $2,500.00 each, tables and chairs and general stock in the total approximate value of $10,000.0, 3 x fridges worth $3,500.00, including general eating utensils, food warmers, kava, general machines and timbers. The cumulative cost of damages was valued at approximately $100,000.00.


CCTV footage


On 8th March 2022, one Prashneel Singh, 21 years of age, self-employed of Sabeto village, Nadi attended to Conform Hardware, Namaka, to view and obtain CCTV footages from Conform Hardware. The CCTV camera installed at the said hardware covered parts of the area that showed the second complainant’s restaurant and kava bar at Lot 3, Transville road, Namaka.


The CCTV footage shows that between 1.30 am and 2.15 am on the early morning of 7th March, 2022, two Itaukei boys exiting through the driveway of the second complainant’s restaurant and kava bar moments before fire was seen engulfing the said business establishment. Through the CCTV footage, one of the Itaukei boy is viewed wearing gumboot, a black-short’s and a t-shirt on his head, whilst the other Itaukei boy is viewed wearing a black-shorts, holding a sulu in one hand and a carton in the other hand.


Admissions


The accused was interviewed under caution at Namaka Police Station. From question and answers 69 to 84 the accused explains that he and another went to buy more alcohol from Namaka and then went to BSP Bank ATM with the intention to withdraw money. At question and answers 85 to 90, the accused admits using a lighter to light the roof of the stall which is the subject property of the first count. He also admits that whilst the stall started to engulf in flames, he walked away from the scene.


From question and answer 110 to 114 of the accused’s record of interview, he explains how he came to be at the second complainant’s restaurant and kava bar. At question and answer 115 to 118, he admits to burning the second complainant’s restaurant and kava bar by using a plastic and a lighter.

  1. After considering the summary of facts read by the state counsel which was admitted by the accused and upon reading his caution interview this court is satisfied that the accused has entered an unequivocal plea of guilty on his freewill. This court is also satisfied that the accused has fully understood the nature of the charges and the consequences of pleading guilty.
  2. The summary of facts admitted by the accused satisfies all the elements of the offences of Arson as charged.
  3. In view of the above, this court finds the accused guilty as charged and he is convicted accordingly.
  4. The state counsel filed written sentence submission and the victim impact statements whereas the accused filed mitigation submissions for which this court is grateful.
  5. The accused counsel presented the following mitigation:
    1. The accused is a first offender;
    2. He was 26 years of age at the time;
    1. Is employed as a Construction Worker;
    1. Married with 4 year old son;
    2. Sole Bread winner of the family;
    3. Is educated up to year 7;
    4. Takes full responsibility for his actions;
    5. Sincerely remorseful and seeks forgiveness of the court;
    6. Regrets what he has done;
    7. Pleaded guilty at the earliest opportunity.

AGGRAVATING FACTORS


9. The aggravating factors are:


(a) Setting fire to someone’s income generating property

The properties were providing an income to the victims as a result of the actions of the accused they lost their source of income.


(b) Bold and undeterred

The accused did not have any regard to the property rights of the victims. There was no one around the premises the accused took advantage of the situation he was bold and undeterred in what he did.

(c) Early Morning Incident

The accused was aimlessly moving around during the early hours of the morning when he set fire to both the properties. The property owners suffered substantial losses as a result of the actions of the accused.

(d) Victim Impact Statement

In the victim impact statements filed separately both the victims stated that they have suffered huge losses and have gone further into debt. They have also become stressed resulting in mental health issues.

TARIFF

10. The maximum penalty for the offence of Arson is life imprisonment. In Isikeli Nakato v State [2018] FJCA 129; AAU74.2014 (24 August 2018) the Court of Appeal held that the appropriate tariff for the offence of Arson is from 5 years to 12 years imprisonment. The Court of Appeal made the following observations in respect of the above from paragraphs 90 to 93:


  1. The legislation in Fiji clearly indicates the intention to treat arson as a very serious offence by making arson an indictable offence and fixing the punishment for arson as life imprisonment. Even the penalty for the offence of attempt to commit arson under section 363 of the Crimes Act is an imprisonment term of 14 years. In my judgment, the range of 02 to 04 years imprisonment does not reflect the seriousness the legislation intended to attribute to the offence of arson and in fact it defeats the obvious intent of the legislature.
  2. It is pertinent to note that;
    1. The established sentencing tariff for the offence of rape which carries a maximum penalty of life imprisonment when committed against an adult is an imprisonment term between 7 and 15 years (State v Naicker [2015] FJHC 537; HAC279.2013); and an imprisonment term between 10 to 16 years when rape is committed on a child victim. (Anand Abhay Raj v State [2014] FJSC 12).
    2. For the offence of manslaughter which carries a maximum penalty of 25 years, the tariff is an imprisonment term between 5 and 12 years. (Vakaruru v State [2018] FJCA 124; AAU94.2014 (17 August 2018))
      1. For the offence of aggravated robbery which carries a maximum penalty of 20 years, the lower tariff for a single act is settled as an imprisonment term between 8 and 16 years. (Wise v State [2015] FJSC 7)
  3. The aforementioned tariffs for the offences of rape, manslaughter and aggravated robbery which carry maximum sentences of life, 25 years and 20 years respectively also suggests that a range of 2 to 4 years imprisonment is not an appropriate tariff for the offence of arson given the maximum penalty of life imprisonment it carries.
  4. Having considered the views expressed by the courts in the decisions cited above and the aforementioned tariffs, it is my considered view that the tariff for the offence of arson under section 362(a) of the Crimes Decree should be an imprisonment term between 5 to 12 years. In selecting the lower end of 5 years imprisonment, I have taken into account inter alia the nature of the offence under section 362(a) which is unlawfully setting fire to a building or a structure, the natural implications of that offence and the maximum penalty which is life imprisonment. Further, this tariff should be regarded as the range of the sentence on conviction after trial. A sentencer may inevitably arrive at a final sentence which is below 5 years imprisonment in applying the two-tier approach unless the aggravating circumstances are quite substantial. If the final sentence reached is one that is below 3 years imprisonment, then it would be at the discretion of the sentencer to opt for any sentencing option as provided under the Sentencing and Penalties Act.

GUILTY PLEA


  1. The accused pleaded guilty as soon as the information and disclosures were filed and served. In Gordon Aitcheson vs. The State, criminal petition no. CAV 0012 of 2018 (2 November, 2018) the Supreme Court offered the following guidance at paragraphs 14 and 15 in regards to the weight of a guilty plea as follows:

[14]. In Rainima -v- The State [2015] FJCA 17; AAU 22 of 2012 (27 February 2015) Madigan JA observed:

“Discount for a plea of guilty should be the last component of a sentence after additions and deductions are made for aggravating and mitigating circumstances respectively. It has always been accepted (though not by authoritative judgment) that the “high water mark” of discount is one third for a plea willingly made at the earliest opportunity. This court now adopts that principle to be valid and to be applied in all future proceeding at first instance.”

In Mataunitoga –v- The State [2015] FJCA 70; AAU125 of 2013 (28th May 2015) Goundar JA adopted a similar but more flexible approach to this issue:

“In considering the weight of a guilty plea, sentencing courts are encouraged to give a separate consideration and qualification to the guilty plea (as a matter of practice and not principle) and assess the effect of the plea on the accused by taking into account all the relevant matters such as remorse, witness vulnerability and utilitarian value. The timing of the plea, of course, will play an important role when making that assessment.”

[15]. The principle in Rainima must be considered with more flexibility as Mataunitoga indicates. The overall gravity of the offence, and the need for the hardening of hearts for prevalence, may shorten the discount to be given. A careful appraisal of all factors as Goundar J has cautioned is the correct approach. The one third discount approach may apply in less serious cases. In cases of abhorrence, or of many aggravating factors the discount must reduce, and in the worst cases shorten considerably.


  1. This court accepts that genuine remorse leading to a guilty plea is a substantive mitigating factor in favour of an accused, however, the guilty plea must be entered in the true spirit of remorse since genuine remorse can reduce the harshness in the final sentence (see Manoj Khera v The State, CAV 0003 of 2016 (1 April, 2016).
  2. This court accepts that the accused has shown genuine remorse when he pleaded guilty on 22nd September, 2022. The date of allegation is 7th March, 2022.
  3. Genuine remorse is about genuinely feeling sorry for what a person has done, accepting guilt because of strong evidence and proof of the offender’s deeds and then pleading guilty is not genuine remorse per se. In this regard, the sentencing court has a responsibility to assess the guilty plea along with other pertinent factors such as the timing of the plea, the strength of the prosecution case etc. Here there is no doubt the timing of the guilty plea is at the earliest and the accused has shown genuine remorse.
  4. Bearing this in mind, the accused ought to receive a reduction for his guilty plea.
  5. Section 17 of the Sentencing and Penalties Act states:

“If an offender is convicted of more than one offence founded on the same facts, or which form a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences that does not exceed the total effective period of imprisonment that could be imposed if the court had imposed a separate term of imprisonment for each of them.”


  1. I am satisfied that the two offences for which the accused stands convicted are offences of the same or similar character. Therefore taking into account section 17 of the Sentencing and Penalties Act I prefer to impose an aggregate sentence of imprisonment for the two offences.
  2. After assessing the objective seriousness of the offences committed I take 5 years imprisonment as the starting point of the aggregate sentence. The sentence is increased for the aggravating factors, and reduced for mitigation and good character. For the early guilty plea the sentence is further reduced.
  3. I also note that the accused had been remanded for about 3 months. The sentence is further reduced as a period of imprisonment already served.
  4. The final aggregate sentence is 3 years imprisonment. I am satisfied that the above term of imprisonment does not exceed the total effective period of imprisonment that could be imposed if the court had imposed a separate term of imprisonment for each offence.
  5. Under section 26 (2) (a) of the Sentencing and Penalties Act this court has a discretion to suspend the final aggregate sentence since it does not exceed 3 years imprisonment.
  6. In State vs. Alipate Sorovanalagi and others, Revisional Case No. HAR 006 of 2012 (31 May 2012), Goundar J. reiterated the following guidelines in respect of suspension of a sentence at paragraph 23:

“[23] In DPP v Jolame Pita (1974) 20 FLR 5, Grant Actg. CJ (as he then was) held that in order to justify the imposition of a suspended sentence, there must be factors rendering immediate imprisonment inappropriate. In that case, Grant Actg. CJ was concerned about the number of instances where suspended sentences were imposed by the Magistrates' Court and those sentences could have been perceived by the public as 'having got away with it'. Because of those concerns, Grant Actg. CJ laid down guidelines for imposing suspended sentence at p.7:

"Once a court has reached the decision that a sentence of imprisonment is warranted there must be special circumstances to justify a suspension, such as an offender of comparatively good character who is not considered suitable for, or in need of probation, and who commits a relatively isolated offence of a moderately serious nature, but not involving violence. Or there may be other cogent reasons such as the extreme youth or age of the offender, or the circumstances of the offence as, for example, the misappropriation of a modest sum not involving a breach of trust, or the commission of some other isolated offence of dishonesty particularly where the offender has not undergone a previous sentence of imprisonment in the relevant past. These examples are not to be taken as either inclusive or exclusive, as sentence depends in each case on the particular circumstances of the offence and the offender, but they are intended to illustrate that, to justify the suspension of a sentence of imprisonment, there must be factors rendering immediate imprisonment inappropriate."


  1. The following relevant special circumstances or special reasons for the

suspension of the imprisonment term in my view needs to be weighed in choosing an immediate imprisonment term or a suspended sentence.


  1. The accused is a young offender (26 years of age at the time of the offending), of good character, isolated offences were committed by him, he has pleaded guilty at the earliest opportunity, is genuinely remorseful, cooperated with police and he takes full responsibility for his actions.
  2. In State v. Tubuna [2020] FJHC 389; HAC017.2020 (5 June 2020); His Lordship Goundar J. in imposing a custodial sentence of 3 years imprisonment, with a non-parole period of 18 months, on a 34 year old offender, who had set fire to the dwelling house of a farmer from the same village held:

“... But the gravity of the offence is measured by the actual conduct of the offender. Burning down someone’s home is a serious offence. The courts’ duty is to denounce such conduct and pass a sentence that has an effect of deterrence, both personal and general, after balancing the aggravating and mitigating factors.”

  1. Considering all the facts and circumstances of this case, including the nature and the gravity of the offences committed and the accused culpability, I am not inclined to suspend the imprisonment term in its entirety.
  2. Mr. Bulitavu you have committed serious offences during the early hours of the morning in question. You did not have any regard for both the victims’ properties. Luckily no one was inside the properties at the time you set fire to them. You have brought about unnecessary expenditure and anxiety on both the victims because of your stupidity. As a mature adult you should have known better.
  3. I am sure the accused has learnt his lesson hence a full term of imprisonment will not augur well for him. This court has taken into account rehabilitation as a balancing factor in imposing a partial suspended sentence.
  4. Under the aggregate sentencing regime of section 17 of the Sentencing and Penalties Act the final aggregate sentence of imprisonment for two counts of Arson is 3 years. In exercise of my discretion I order that you serve 2 years immediate imprisonment term whilst the balance of 1 year is suspended for 4 years.

30. Having considered section 4 (1) of the Sentencing and Penalties Act and the serious nature of the offences committed on the victims compel me to state that the purpose of this sentence is to punish offenders to an extent and in a manner which is just in all the circumstances of the case and to deter offenders and other persons from committing offences of the same or similar nature.


  1. In summary I pass an aggregate sentence of 3 years imprisonment for two counts of Arson out of which the accused is to serve an immediate imprisonment term of 2 years with the balance of 1 year imprisonment suspended for 4 years after the accused is released from the Corrections Centre. The effect of a suspended sentence is explained to the accused.

32. 30 days to appeal to the Court of Appeal.


Sunil Sharma
Judge


At Lautoka
16 November, 2022


Solicitors
Office of the Director of Public Prosecutions for the State.
Office of the Legal Aid Commission for the Accused.


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