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State v Malugu [2010] FJHC 78; HAC048.2009S (5 March 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 048 OF 2009S

STATE

V

KITIONE BAGASAU MALUGU

Counsels : Ms. A. Tuiketei for the State
Mr. S. Titoko for the Accused
Sentencing : 5th March, 2010

SENTENCING

1. On 4th December 2009, the following charge was put to you, in the presence of your counsel:
   

Statement of Offence

ARSON: contrary to section 317(a) of the Penal Code, Cap. 17.

Particulars of Offence

KITIONE BAGASAU MALUGU, on the 26th day of February, 2009 at Nasinu in the Central Division willfully and unlawfully set fire to the Public Works Department work shed the property of Government of the Republic of Fiji.

2. You pleaded guilty to the charge, and the matter was adjourned to 18th December 2009, for facts, plea in mitigation and sentence. On 18th December, 2009, the prosecutor read her summary of facts. Briefly, it was as follows. On 26th February, 2009, you worked as a watchman for the Public Works Department (PWD). The PWD were upgrading Nokonoko Road, at the time, and had two sheds in which they stored their work equipments. You were hired to keep a watch on these equipments between 5pm on 26th February 2009 to 7am, the next morning.
   
3. Shortly after you started work on 26th February 2009 after 5pm, you telephoned two friends to drink at your work site. The three of you drank liquor from a 26 oz bottle of bounty rum from 6pm to 10pm. Another 26 oz bottle of bounty rum was bought, and liquor was further consumed until 11.30pm. Three other people joined the group after 10pm. After the drinking party was over, you found out that someone had driven out in your car, without your permission. You were extremely angry. You then burnt the sheds using a flammable liquid. $17,000 worth of equipments were destroyed, as a result of the fire.
   
4. The court checked with your counsel to see that all the ingredients of the offence of arson were satisfied. Your counsel admitted, on your behalf that, you willfully and unlawfully set fire to the PWD work sheds, at your work site, on 26th February 2009. As a result of the above, the court found you guilty as charged.
   
5. I have carefully considered your plea in mitigation. I note you are 33 years old. You are a 1st offender. You reached FIT level education. You pleaded guilty and therefore saved the court’s time. You are now working and earning $66 per week. You co-operated with the police during the investigation. I also note that you were angry, when someone drove away in your car, without your permission. However, that was no reason for you to burn down the PWD sheds, resulting in damages totaling $17,000. You said, you could repay the $17,00, and that was why the court adjourned the matter to 2010, to enable you to get the same. However, you now say, you are unable to find the $17,000.
   
6. 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.
   
7. The mitigating factors in your case were as follows:
   

(i) you pleaded guilty and therefore saved the court’s time;

(ii) at the age of 33 years old, this is your 1st offence;

(iii) you co-operated with the police during their investigation;

(iv) you were somewhat provoked into committing the offence, when someone drove away in your car, without your permission.

8. The aggravating factors were as follows:
   

(i) you burnt down the PWD work sheds, which housed $17,000 worth of equipments, which were damaged;

(ii) you were paid to watch these sheds and equipments, but instead neglected your duty, by holding a drinking party at your work site;

(iii) you have deprived the taxpayers of this country of $17,000 worth of work equipment.

9. I would start with a sentence of 3 years imprisonment. With the aggravating factors, I would increase the 3 years to 6 years prison. I would decrease the 6 years by 4 years for the mitigating factors, leaving a balance of 2 years prison. You are convicted as charged and sentenced to 2 years imprisonment.
   

Salesi Temo
ACTING JUDGE

AT Suva
5th March, 2010