IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO: HAC 79 of 2019

STATE

V
JOSAIA BOLACIRI

Counsel		:	Mr. Zenith Zunaid for the State
				Ms. Patricia Mataika for the Accused

Sentence Hearing	:	28 November 2019
Date of Sentence	:	20 December 2019

SENTENCE

[1]	Josaia Bolaciri, you are charged with the following offence:
COUNT 1
Statement of Offence (a)
ATTEMPT TO COMMIT ARSON: Contrary to Section 363 (a) of the Crimes Act 2009.
Particulars of Offence (b)
JOSAIA BOLACIRI, on the 15th day of July 2017, at Nasinu, in the Central Division, attempted to unlawfully set fire to the dwelling house of ALESI ROKOCACA.

[2]	This matter was first called before the High Court on 8 March 2019 and the Director of Public Prosecutions (DPP) was granted time to file Information and Disclosures.
[3]	On 15 April 2019, the State filed the Information and Disclosures relevant to the case. However, the plea had to be deferred, as a Bench Warrant had been issued for your arrest due to your absence from Court since 15 April 2019.
[4]	You were arrested on the Bench Warrant and produced in Court only on 20 September 2019.
[5]	When the matter came up before me on 29 October 2019, you were ready to take your plea. You pleaded guilty to the charge in the Information. This Court was satisfied that you pleaded guilty on your own free will and free from any influence. Court found that you fully understood the nature of the charge against you and the consequences of your plea. 
[6]	Thereafter, on 13 November 2019, the Summary of Facts were read out and explained to you and you understood and agreed to the same. Accordingly, Court found your guilty plea to be unequivocal. I found that the facts support all elements of the single count in the Information, and found the charge proved on the Summary of Facts agreed by you. Accordingly, I found you guilty on your own plea and I convicted you of the charge.
[7]	I now proceed to pass sentence on you.
[8]	The Summary of Facts filed by the State was as follows: 
“Complainant 	:	 Alesi Rokocaca (age 46) (hereafter PW1)
Accused	:	Josaia Bolaciri (age 22) (hereafter “the accused”)
Location of Offence: Lot 37, Maba Crescent, Nasinu.
On 15 July 2017 at about 3.00 p.m., the accused broke into the house of PW1 and attempted to set it on fire by throwing kerosene inside its living room. PW1 was not at home at the said time. The neighbour of PW1, Jesoni Tagicakiverata (hereafter PW2) who saw the accused pouring kerosene inside PW1’s house informed PW1 and also called the police to report the same.
After sometime Officer Naivasi Gauna (hereafter PW3) who arrived at the scene also saw the accused trying to set PW1’s house on fire.
The accused was thereafter arrested and caution interviewed.
The accused in his caution interview admitted that he entered PW1’s house and poured kerosene in the living room and attempted to set it on fire.
(Refer to the caution interview of the accused Q & A 42-27 annexed as A1).
The Accused was then charged with Attempt to Commit Arson contrary to Section 363 (a) of the Crimes Act.” 
[9]	Josaia you have admitted to the above Summary of Facts and taken full responsibility for your actions.  
[10]	Section 4 of the Sentencing and Penalties Act No. 42 of 2009 (“Sentencing and Penalties Act”) stipulates the relevant factors that a Court should take into account during the sentencing process. I have duly considered these factors in determining the sentence to be imposed on you. 
[11]	The offence of Arson is defined in Section 362 of the Crimes Act No. 44 of 2009 (Crimes Act), in the following manner:
“A person commits an indictable offence if he or she wilfully and unlawfully sets fire to — 
(a) any building or structure (whether completed or not); or 
(b) any vessel (whether completed or not); or 
(c) any commercial plantation of trees; 
(d) any stack of cultivated vegetable produce, or of mineral or vegetable fuel; or
(e) a mine, or the workings, fittings or appliances of a mine.”
The maximum penalty for Arson is Imprisonment for life.
[12]	Section 363 of the Crimes Act establishes the distinct offence of “Attempt to Commit Arson”. The offence is defined as follows:
	“A person commits an indictable offence if he or she — 
(a) attempts unlawfully to set fire to any such thing as is mentioned in section 362; or 
(b) wilfully and unlawfully sets fire to anything which is so situated that any such thing as is mentioned in section 362 is likely to catch fire from it.”
The offence of Attempt to Commit Arson in terms of Section 363 of the Crimes Act carries a maximum penalty of 14 years imprisonment. 
[13]	There is no predetermined or established tariff for the offence of Attempt to Commit Arson.  
[14]	In Isikeli Nakato & Another v. State [2018] FJCA 129; AAU74.2014 (24 August 2018); the Fiji Court of Appeal held:
	“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.”
[15]	His Lordship Justice Madigan in State v. Seru & Another [2016] FJHC 841; HAC32.2015 (21 September 2016); held:
[15] There is no predetermined tariff for the crime of attempted arson but the accepted sentences for arson itself range from 2 years to 10 years. Two years has been held to be appropriate where there is no danger to human life and 4 years where there is such a danger. These are sentences passed for a crime with the maximum penalty of life imprisonment, and there is no reason why a tariff for attempted arson should be more.
[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 Damodar Naidu & Anor v R. C.A. (1978) FLR93).
[16]	Considering all the above, and taking into consideration the facts and circumstances of the case, it is my opinion that the appropriate tariff for the instant case should be in the range of 2 to 10 years imprisonment.  
[17]	In determining the starting point within a tariff, the Court of Appeal, in Laisiasa Koroivuki v State [2013] FJCA 15; AAU 0018 of 2010 (5 March 2013); has formulated the following guiding principles: 
	“In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time.  As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff.  After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff.  If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range.”
[18]	In the light of the above guiding principles, and taking into consideration the objective seriousness of the offence, Josaia, I commence your sentence at 2 years imprisonment for this offence. 
[19]	The aggravating factors are as follows:
(i)	You are the nephew of the complainant. The complainant is your father’s sister. Thus there has been a breach of trust. You should have protected the premises rather than attempting to unlawfully set it on fire.
(ii)	You paid scant regard to the privacy and the property rights of the complainant. 
[20]	In mitigation you have submitted as follows: 
(i)	That you are a first offender and that you have no previous convictions to date. The State too confirms that there are nil previous convictions recorded against you.
(ii) 	That you fully cooperated with the Police when you were taken in for questioning and subsequently charged instead of trying to circumvent the course of justice. 
 (iii) 	You have sought forgiveness from this court and have assured that you will not re-offend. You have submitted that you are truly remorseful of your actions.     
(iv)	You have also said to have reconciled with the complainant and sought her forgiveness. The complainant has confirmed this position.
(iv)	That you entered a guilty plea at the first available opportunity in these proceedings.  
[21]	Considering the aforementioned aggravating factors, I increase your sentence by a further 4 years. Now your sentence would be 6 years imprisonment.
[22]	I accept that you are a person of previous good character and that you have fully co-operated with the Police in this matter. I also accept your remorse as genuine. I also acknowledge the fact that you have fully reconciled with the complainant and sought her forgiveness. Accordingly, considering these mitigating factors, I deduct 3 years from your sentence. Now your sentence would be 3 years imprisonment. 
[23]	I accept that you entered a guilty plea at an early stage of these proceedings. In doing so, you saved precious time and resources of this Court. For your early guilty plea I grant you a further discount of 1 year. Now your final sentence would be 2 years imprisonment.
[24]	The next issue for consideration is whether your sentence should be suspended.
[25] 	Section 26 of the Sentencing and Penalties Act provides as follows:
(1) 	On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or part of the sentence, if it is satisfied that it is appropriate to do so in the circumstances. 
(2) 	A court may only make an order suspending a sentence of imprisonment if the period of imprisonment imposed, or the aggregate period of imprisonment where the offender is sentenced in the proceeding for more than one offence,— 
(a) does not exceed 3 years in the case of the High Court; or 
(b) does not exceed 2 years in the case of the Magistrate’s Court. 
[26]	Josaia you are now 24 years of age. Your date of birth is 1 March 1995. You are said to be in a de-facto relationship and your partner is about to give birth to your first child. You are said to be a carpenter and the sole provider for your family. 
[27]	You have admitted that what you did was wrong, and taken full responsibility for your actions. It seems that the offence was committed by you due to lack of good judgment on your part. There was said to be a dispute between your father and the complainant regarding the dwelling house, which is the subject matter of this case. You have said that you were angry and affected by the said dispute which led you to commit the offence. 
[28]	You have been in custody for this case for a period of over 6 months. This includes the period you were remanded by this Court since 20 September 2019. 
[29]	In Singh & Others v. State [2000] FJHC 115; HAA 79J of 2000S (26 October 2000); Her Ladyship Madam Justice Shameem held: 
	“….However as a general rule, leniency is shown to first offenders, young offenders, and offenders who plead guilty and express remorse. If these factors are present then the offender is usually given a non-custodial sentence.”
[30]	In Nariva v. The State [2006] FJHC 6; HAA 148J.2005S (9 February 2006); Her Ladyship Madam Justice Shameem held: 
“The courts must always make every effort to keep young first offenders out of prison. Prisons do not always rehabilitate the young offender. Non-custodial measures should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preference to imprisonment.”
[31]	I have considered the following circumstances: 
•	You are young offender (you were 22 years of age when you committed this offence);
•	You have been of previous good character;
•	You have fully cooperated with the Police;
•	You have accepted responsibility for your conduct;
•	You submit that you are truly remorseful of your actions and have sought forgiveness from this Court;
•	You have reconciled with the complainant and sought her forgiveness;
•	You have assured Court that you will not re-offend; 
•	You entered a guilty plea at an early stage of these proceedings;
•	You have already spent over 6 months in remand custody for this case.

Accordingly, it is my opinion that the chances for your rehabilitation is high.  Therefore, I deem it appropriate to suspend your sentence for a period of 5 years. 

[32]	In the result, your final sentence of 2 years imprisonment, is suspended for a period of 5 years. You are advised of the effect of breaching a suspended sentence. 
[33]	You have 30 days to appeal to the Court of Appeal if you so wish. 

Riyaz Hamza
JUDGE
HIGH COURT OF FIJI

AT SUVA
Dated this 20th Day of December 2019

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