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State v Seniloli [2004] FJHC 49; HAC0028J.2003S (6 August 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0028 OF 2003S

STATE

v.

RATU JOPE SENILOLI
RATU RAKUITA VAKALALABURE
RATU VILIAME VOLAVOLA
PECELI RINAKAMA
VILIAME SAVU

Hearing: 28th June 2004
Sentence: 6th August 2004

Counsel: Mr. G. Allan, Ms A. Prasad for State;
Mr. M. Raza for 1st Accused;
Mr. A.K. Singh for 2nd Accused;
Mr. S. Naqase for 3rd & 5th Accused;
Mr. A. Seru for 4th Accused.

SENTENCING

The five defendants, Ratu Jope Seniloli, Ratu Rakuita Vakalalabure, Ratu Viliame Volavola, Mr. Peceli Rinakama and Mr. Viliame Savu have all been found guilty of taking an engagement in the nature of an oath purporting to bind them to commit acts of treason.

The maximum penalty for this offence is life imprisonment. There have been, to my knowledge, no previous sentences passed in relation to section 5 of the Public Order Act in Fiji. Thus, there is no established tariff for the offence. As such I will pick starting points for each accused depending, in each case, on differing levels of culpability and participation. In picking starting points in each case, I am conscious also, of the seriousness of the offence itself. The taking of an oath purporting to bind persons to acts of treason, is potentially an offence, which causes great insecurity and fear amongst those who witness it. When it is widely publicised, as this ceremony was, it causes widespread insecurity and fear amongst the people of Fiji. In this case, in respect of all the defendants, there is an element also, of betrayal, betrayal of traditional leadership and of oaths of office already taken under the law.

The oaths taken in this case, were part and parcel of a number of events in Parliament after the 19th of May which caused great instability in the country. Many lives were destroyed and disrupted. The President eventually stepped aside from office and a resulting period of legal uncertainty caused more chaos and anguish in Fiji.

I have perused the authorities in other treason-related sentences passed, referred to me by counsel. In State v. Samu Konataci & Others Scott J imposed sentences of 1½ years, 2 years and 3 years imprisonment on a number of men charged with unlawfully confining the hostages in Parliament. However each had been held in remand for 13 to 19 months prior to sentence, an effective term of imprisonment of 2 to 2½ years. Thus, Ilisoni Ligairi for instance received the equivalent of 5½ years imprisonment. Further, all accused persons pleaded guilty. In State v. Viliame Savu Cr. Action HAC 010.02S, Gates J sentenced the accused, (the 5th defendant in this case) to 2 years imprisonment for misprison of treason. He considered 3 years imprisonment to be appropriate but reduced the term on the grounds of age (then 65 years) and 3 months spent in custody.

I have also been referred to State v. Silatolu & Nata Crim. Action HAC 011 of 2001. The offences were treason and both accused were sentenced to life terms with minimum fixed terms of 9 and 7 years. However because the two defendants were convicted of actually conducting the takeover of Parliament, I do not derive much assistance from that case.

I do note however that all persons convicted of coup-related cases have received custodial sentences, and that all the judges concerned referred to the great harm which resulted from the coup, the damage done to lives, livelihood, the economy and Fiji’s reputation abroad. Clearly all judges were of the view that deterrent custodial sentences were inevitable given the enormity of the events which arose from the crisis of 2000.

Of course, not all of the events in Parliament can be laid at the defendants’ door. Indeed I accept that none of the defendants was part of the takeover nor was responsible for it. Further, I also accept that in times of crisis and emergency, it is not always easy to act wisely. Many people in Fiji may have regrets about the wisdom of their actions in 2000. Wisdom is easy in hindsight. I think that this is particularly so, in this case for Ratu Volavola who expressed in his interview both disquiet and disillusionment about the turn of events in Parliament after the 20th of May 2000. However, all defendants lent their weight, the weight of their social status, their traditional status and of their official status to the coup. The sentences I pass in this case, must express the disapproval of all our communities to the acts of those who support illegal coups, who agree to form illegal governments with rebels, and who deliberately undermine and destroy the authority of the President of Fiji and of the rule of law. The sentences I pass must reflect that disapproval in the context of Fiji’s history of political instability and illegal takeovers of government.

Ratu Jope Seniloli

You swore an oath to serve as an Interim President in the Speight government when you knew that Fiji already had a lawful President, Ratu Sir Kamisese Mara. Yours was an act of the deliberate flouting of the law, and the failure to support, the lawful President. I pick as my starting point, 6 years imprisonment.

I have considered all the mitigating circumstances outlined by counsel, your good character, your years of service to the community, your current position as the Vice-President of Fiji, your position of traditional leadership on Bau and your many years as a school teacher. I also take into account your apology in court, your age and the delay in the laying of charges. For these factors, I give you a discount of 3 years imprisonment.

However, I cannot ignore that you, as a chief of Bau, supported Speight and his illegal regime in order to give it credibility and weight. Nor can I ignore the fact that, at a time when you as a traditional leader were expected to lead your people towards respect for the law and support for the lawful authority of Ratu Mara, you failed to display such leadership.

Your act was a betrayal of those expectations.

In these circumstances I consider that the sentence should be increased by 2 years to reflect these matters. I consider that a sentence of 5 years imprisonment to be appropriate. However, in the light of your age, I reduce it further by one year to 4 years imprisonment.

Ratu Rakuita Vakalalabure

Having heard the evidence in this case, I am left in no doubt that much of the planning for the Speight government was done by you. This is obvious from the videos shown during the trial. Further, I consider that you also had some input into the choosing of ministers for various portfolios. You yourself earlier accepted a position as Home Affairs Minister before you swore the oath to be Attorney-General. To reflect your greater culpability, I choose a starting point of 8 years imprisonment.

In your favour is your good character, the remorse expressed on your behalf by counsel, your army record and your service to the country both as a peacekeeper and as a lawyer and a Parliamentarian. I also take into account your family circumstances and all I have heard about your wife and your children. I also take into account the disciplinary proceedings conducted by the Law Society, which resulted in a finding that you would be debarred for life. The charge was the swearing of the oath in the Speight Government thereby being guilty of professional misconduct. That order has now been stayed by the Court of Appeal pending appeal. Further, I accept as counsel says, that any period of incarceration is traumatic for you and that you are shocked and demoralised by the court proceedings. I also take into account the delay since 2000. To reflect these matters, I reduce your sentence by half, to 4 years imprisonment.

However I cannot disregard the fact that as a lawyer you were expected wisely to counsel those around you. As a lawyer you should have been prepared to fight for the rule of law. Instead you worked with those who destroyed it. Also aggravating your sentence is that you betrayed your oath as a Parliamentarian and showed no commitment to democracy in Fiji. This country should have been able to look to our young educated leaders, particularly those with legal qualifications, to lead with a vision for the future. Leadership is easy in stable and calm times. It is really put to the test in times of adversity. Your failure to lead others along the correct path after the takeover of Parliament may have led the other defendants to believe that the Speight government had some legal status. I increase the term by two years to reflect these aggravating circumstances and sentence you to 6 years imprisonment.

Ratu Viliame Volavola

I set your level of culpability as one, which is lower than that of the 1st and 2nd defendant. Although I have no hesitation in rejecting your suggestion that you were forced to take the oath, I accept that you took part in the Speight government because you felt in a misguided moment, that you were helping the people of Fiji.

I take as the starting point 4 years imprisonment. I reduce that by 3 years for good character (I disregard your very old previous convictions), service in the military, the delay since 2000, your expressed regret and remorse, your family circumstances and many years of service to the community. I also consider the fact that you withdrew your support from the coup when you realised that those involved in it had unacceptable motives. This speaks well for your sense of personal honour.

However I cannot disregard the fact that you, a Lieutenant-Colonel in the army, lent your support to a government you knew was unlawful and did not have the support of your superior officers. Certainly you betrayed Ratu Sir Kamisese Mara and the Commander of the Military Forces. You also betrayed your Constitutional oath as a Parliamentarian. You failed to uphold the rule of law and democracy. After adjusting for mitigating and aggravating circumstances I arrive at a sentence of 3 years imprisonment.

Mr. Peceli Rinakama

In your case also, I choose as my starting point 4 years imprisonment. I take into account all that has been said on your behalf, your good character, your family circumstances, the delay in the case, your career and your service to the community at Naitasiri. I also accept that you might not have taken the oath had it not been for the support of your traditional leaders, and you may have thought you had little choice in the matter.

However, you also were and are, a leader in your own right. You were a member of Parliament and you betrayed your oath of office and your colleagues then held hostage, to take a position in the Speight government. You gave the Speight government strength and you undermined the efforts of the President of Fiji, to restore law and order in Fiji. Your actions undermined Parliamentary democracy and respect for the law.

I consider that a sentence of 3 years imprisonment to be appropriate, and sentence you accordingly.

Mr. Viliame Savu

Having read the sentencing remarks of the trial judge in your trial on the charge of misprison of treason, I consider that you played an active role in the events in Parliament. You clearly knew about the planning of the coup, and arrived at the Complex on the 20th to see how you could gain from it. You did not hesitate to accept the position offered to you, and I have no doubt that you willingly, even enthusiastically, lent your support to the illegal regime. However I accept that you had a lesser role than the others.

I also pick as my starting point 4 years imprisonment. I take into account your family circumstances and your career. I have also considered the evidence of Mr. Ilaitia Vere Tuisovivi, from the Prison Fellowship who spoke on your behalf to say that you had helped the Fellowship. These matters do you credit. I note that you are due for an operation shortly but consider that arrangements can be made for this by the Prisons Department. However I cannot treat you as a first offender as I have the other defendants. I consider a sentence of 4 years imprisonment to be appropriate. I note however that you have served 2 years imprisonment for a related offence and consider that if you had been tried for both offences in one trial, you may have received concurrent sentences. However any sentence for this offence would have been longer than that for misprison of treason, because the act of taking an oath to commit treason requires active participation unlike the passive role played by any accused in relation to misprison. I therefore deduct 2 years from the 4 years I impose on you. I arrive at a sentence of 2 years imprisonment. I deduct a further year on account of your age. You are sentenced to 12 months imprisonment.

In summary the sentences are as follows:

Ratu Jope Seniloli - 4 years imprisonment;

Ratu Rakuita Vakalalabure - 6 years imprisonment;

Ratu Viliame Volavola - 3 years imprisonment;

Mr. Peceli Rinakama - 3 years imprisonment;

Mr. Viliame Savu - 12 months imprisonment.

Nazhat Shameem
JUDGE

At Suva
6th August 2004