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Vakabale v State [2002] FJHC 151; HAA0051J.2002L (23 August 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA 0051 OF 2002L

Between:

DONATO VAKABALE
Appellant

And:

THE STATE
Respondent

Hearing: 20th August 2002
Judgment: 23rd August 2002

Counsel: Appellant in Person
Mr G. Allen for State

JUDGMENT

This is an appeal against sentence. The Appellant pleaded guilty to the following offences, on 15th March 2002:

FIRST COUNT

Statement of Offence

ARSON: Contrary to section 317 of the Penal Code, Cap. 17.

Particulars of Offence

DONATO VAKABALE on the 7th day of October, 2001 at Toge, Ba in the Western Division wilfully and unlawfully set fire to the dwelling house of AMRIT LAL s/o SUKHARI.

SECOND COUNT

Statement of Offence

THROWING OBJECT: Contrary to section 105 of the Penal Code, Cap. 17.

Particulars of Offence

DONATO VAKABALE on the 7th day of October, 2001 at Toge, Ba in the Western Division wilfully threw stones at the dwelling house of AMRIT LAL s/o SUKHARI.

The prosecution outlined the facts. They were that the complainant and his wife lived at Toge, Ba. On 7th October 2001, at about 5am, they heard the windows breaking. The complainant opened his door and found a person damaging the windscreen of his carrier, then setting fire to it. Stones were being thrown at his house preventing the complainant from leaving. The fire spread from the van to the house, destroying both. The complainant, unable to escape the fire, telephoned his neighbour, one Miliano Nakobulu. He helped the two occupants to get out of the house without injuries. The complainant’s brother tried to send his son to help the complainant and his wife, but the Appellant threatened him and said that if he came to help he would die. Mr Nakobulu saw someone running away from the house and gave chase. He caught that person. It was the Appellant. The Appellant admitted setting fire to the van and gave Mr Nakobulu a bundle of tobacco. He was interviewed by the police on the same day. He admitted setting fire to the van, and the house. He said he did this because the complainant had paid young girls in the village to have sexual intercourse with him. As a result of the fire, the complainant lost his van, house and all his belongings, to the total value of $230,750.00. There was no insurance.

The Appellant agreed with these facts. He was convicted. He had two previous convictions, one for larceny in 2000, and one for house-breaking entering and larceny also in 2000.

The learned Magistrate sentenced the Appellant to 4 years imprisonment, on Count 1 saying that although the Appellant had pleaded guilty and had saved the court time, the offence was a serious one. Although he thought the value of the property was exaggerated, he considered the Appellant’s conduct in threatening to kill anyone who helped the occupants of the house to escape, warranted an immediate custodial sentence. On Count 2, the Appellant was sentenced to a concurrent term of 3 months imprisonment.

The Appellant appeals against the sentence on the grounds that the Magistrate failed to give enough credit for the motive for the crime, that the totality principle had been ignored and that the sentence was harsh and excessive.

State counsel opposed the appeal, pointing to the damage caused and the conduct of the Appellant in trying to prevent help from being offered to the victims of the fire.

The maximum sentence under section 317 of the Penal Code is life imprisonment. A two year term of imprisonment was upheld by Court of Appeal and the Supreme Court in Amina Koya -v- The State Crim. App. No. CAV 0002/97. However the motive in that case was not revenge, and there was no danger of harm to any person because the fire was lit in an unoccupied building. In this case, the Appellant knew there was danger to the occupants and acted to enhance that risk of harm. Further the Appellant was not entitled to the leniency which might extend to a first offender. Finally, as the learned Magistrate remarked, the act of arson in this case was an act of calculated revenge and deliberate lawlessness.

I do not consider that the sentence was manifestly excessive, nor wrong in principle. The appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
23rd August 2002