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Water Authority of Fiji v Tikoivavalagi [2013] FJMC 115; Criminal Case 1516.2012 (22 March 2013)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 1516/2012

WATER AUTHORITY OF FIJI

-v-

FILIPE TIKOIVAVALAGI

Mr. John Rabuku for Water Authority of Fiji
The Accused appeared in person

1] The Accused in this case is charged with following offence namely;

CHARGE:

FIRST COUNT

Statement of Offence [a]

WILFUL INTERFERENCE WITH AN ASSET OF THE AUTHORITY: Contrary to Section 36 (1) & 27 (2) of the Water Authority of Fiji Promulgation 2007.

Particulars of Offence [b]

FILIPE TIKOIVAVALAGI between the 24th day of February 2011 to the 2nd day of October, 2012 at Nasinu in the Central Division willfully interfered with the Water System of the Water Authority of Fiji by making a connection to the Water System using a hosepipe without first obtaining the prior written approval of the Authority.

2] The accused pleaded guilty to the charge at the very outset. I hold his plea is unequivocal and he understands the repercussion of his plea. I convict the accused as charged.

3] The SUMMARY OF FACTS, which the accused has admitted, can be summarized as follows; on 24/2/11 at Lot 107B Ulavi Road, Nepani Meter Number KD57-169 was disconnected by Vakatawa Qioniwasa 41 years, Service Technician of the Water Authority due to bill arrears amounting to $1411.27. On 2/10/12 Vakatawa Qioniwasa visited the site and found out that a 75mm hosepipe was used to access water from the service pipe to their premises. This was done without prior written approval from the Authority. Vakatawa Qioniwasa informed Filipe Tikoivavalagi, Accused 39 years, Lay-Pastor who was the occupant of the premises that he will plug off the supply of water due to the use of a hosepipe which has not been approved by the Authority to access water to the water system. That Vakatawa Qioniwasa then plugged off the hosepipe and warned the accused that since he has committed an offence he may be liable for prosecution.

4] The Water Authority of Fiji Promulgation 2007 imposes heavy penalties on offenders. In section 36(1) says;

"36.-(1) A person who willfully, destroys, damages, tampers with or interferes with any assets of the Authority, including its Water System or Sewerage System commits an offence and is liable on conviction to a fine not exceeding $1,000,000 or to imprisonment for a term not exceeding 10 years."

5] The Section 27(2) says "No owner or occupier of premises shall connect the premises to the Water System or Sewerage System except with the prior written approval issued by the Authority." The summary of facts shows due to the arrears of Water Bills the accused water connection was disconnected. He accumulated $1411.27 of arrears. It was disconnected on24/2/2011 by Mr. Vakatawa Qioniwasa Service Technician of the Water Authority. When an inspection was done on 2/10/2012, it revealed the accused illegally, without prior written approval of the Water Authority, has stolen the Water. It is unclear this court the value of stolen water.

6] The Accused in his mitigation said that he is 45 years old, married with five kids. He just started work at Chinese Railway Company. He earns $280 per week. He is remorseful and tendered an apology. As he is a first offender he asked second chance.

7] I now deal with the sentencing option in this regard. Section 4(2) provides; "In sentencing offenders a court must have regard to:—

(a) the maximum penalty prescribed for the offence;

(b) current sentencing practice and the terms of any applicable guideline judgment;

(c) the nature and gravity of the particular offence;

(d) the offender's culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) the offender's previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option."

8] I now draw my attention to Section 15(3) of SENTENCING AND PENALTIES DECREE 2009 no: 42 of 2009, the main object of the Sentencing.

"As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this Part."

9] I now turn to case law. In Prasad v The State [1994] FJHC 132; Haa0032j.94s (30 September19994) S W Kepa J enunciated that the fact that Appellants are first offenders&#ught to beto be a very strong mitigating factor in their favour. A prison sentence ought to be the last resort after the court has explored and exhausted all otlternative sentences. (Emphasize is mine)

1

10] In Prasad v State [1994] FJCA 19; Aau0023u.93s (24 May 1994), Fiji Court of Appeal held that ".... Courts ought to bend backwards to avoid immediate custodial sentence for first offenders."

11] It has been noted in Prasad v The State [1994] FJHC 132 (Supra) that criminologists recognise that a prison sentence should be the last resort especially where a first offender is concerned unlee charge irge is very serious or the offender is dangerous and imprisonment is called for in the public interest or in the est o offender himself. (Emphasize is mine).

12] This is a serious offs offence.ence. Needless to say, water is an essential component for all of us. The Authority has striven to give better service to customers yet these types of offenders overburden them. On the other hand, it is unfair for genuine customers of Authority who pay rates regularly beside others are defaulting or stealing water. Therefore sentence must be exemplary. Herein after, the court will take stern action the offenders to prevent this kind of offences, may attract custodial sentences. However, considering your family plight and first offender the court is mindful to give you a second chance. So, far, there is no tariff is set by the High Court for this offence. I rely on above guidelines and sentencing principles.

13] Therefore, you are sentence to 1 year imprisonment. The same is suspended for 3 years as you are a first offender. In addition you pay 250 as fine. In default you serve 25 days in prison. Within 60 days you should pay this fine. Nature of suspended is explained in open court to the accused.

14] 28 day to appeal

On 22nd March 2013, at Nasinu, Fiji Islands

Sumudu Premachandra [Mr.]
Resident-Magistrate-Nasinu