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State v Takiveikata [2010] FJHC 75; HAC009.2008 (5 March 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 009/2008

THE STATE
Prosecution

V

1. RATU INOKE TAKIVEIKATA
2. FEOKO GADEKIBUA
3. BARBADOS MILLS
4. SIVANIOLO NAULAGO
5. METUISELA MUA
6. EPARAMA WAQATAIREWA
7. KAMINIELI VOSAVERE
8. PAULIASI NAMULO

Accused

Mr D. Toganivalu for the State
Mr A. Naco for 1st Accused
Mr. I.Khan for for 2nd, 3rd, 5th – 8th Accused
Mr. M. Raza for 4th Accused

SENTENCE

1. Ratu Inoke Takiveikata, Feoko Gadekibua, Barbados Mills, Sivaniolo Naulago, Metuisela Mua, Eparama Waqatairewa, Kaminieli Vosavere and Pauliasi Namulo have been convicted by this Court of one count of conspiracy to murder, contrary to section 217 of the Penal Code, Chapter 17, Laws of Fiji. The maximum sentence for this offence is 14 years imprisonment.
   
2. The facts concerned a conspiracy hatched probablysometime in the spring of 2007 and first brought to the attention of the Military Intelligence Services in September 2007 when the first accused told an undercover agent of those services that there was a group of people discussing the assassination of the Commander of the Fiji Military Forces, who at the time was, and is, the Prime Minister, Voreqe Bainimarama. In subsequent meetings the plot was discussed and developed, all of the accused playing some role to a greater or lesser extent in furtherance of the conspiracy. Plans included a weakening (or later removal) of the Military, declaration of a Police State, removal of His Excellency the President and requesting Australia and New Zealand to assist. It was even said that Australia had agreed to put up $1 billion to "kick start" the economy of the proposed new order. Training sessions were arranged to practice attacks on military installations, clandestine meetings were arranged where details were discussed. The conspiracy was brought to an end when suspects, including some of these accused, were stopped at a road block in the afternoon of the 3rd November 2007 at Delainavesi. All of the accused were arrested at the beginning of November and interviewed under caution. Four of the accused had previously pleaded guilty in Court-Martial proceedings to mutiny when they had joined in concert with others to attack installations in the Queen Elizabeth Barracks at Nabua in November 2000.
   
3. The first accused, a high chief of Naitasiri Province was the business partner of Ballu Khan who was originally arrested for this offence but was released following a successful stay application in November 2008.
   
4. In the circumstances, I have no doubt that this plot was hatched by, orchestrated by, and directed by Ballu Khan, probably in concert initially with his business partner Ratu Inoke (The first accused).
   
5. The military take-over in December 2006 had the effect of creating a class of dispossessed – people and companies who had great privileges, benefits and influence under the SDL government. Ballu Khan certainly fits into that definition and the change of administration saw his and his company’s fortunes wane overnight and with allegations of corrupt behavior he must have been more than anxious to restore his fortunes to their former felicitous state. It is quite apparent that every one of these accused apart from the 5th accused is connected in some way to Ballu Khan – whether he be business partner, or employee in some capacity.
   
6. The theme throughout the trial of weakening the Military, "removing" the Commodore and the President, ridding the country of Indo-Fijians, reveals both sinister and racial intentions. In late 2007 the state of Fiji was in a very fragile state, and had this plot succeeded, the consequences are unthinkable. There has been no evidence before this Court of any thought given to the fate of the average Fijian should the country be suddenly rid of its President, Prime Minister and army – the plans of the accused were totally self-serving, thoughtless and greedy. There was no plan to establish a responsible government to replace the targeted institutions – it was totally destructive rather than constructive. Use was being made of the military skills of the C.R.W. boys, the brains and business acumen of the 4th accused, the status and influence of the first accused and the racial bigotry of all. It is also quite evident that the Military did all it could to train these C.R.W. soldiers to their best in physical and tactical terms, but it is quite apparent that their social and cultural skills were totally neglected. I have no hesitation in concluding that this plot was selfish, petulant and arrogant, and potentially highly destructive of the fabric of Fiji’s statehood. On a scale of seriousness of this offence, I can think of nothing more serious than plotting to assassinate the serving head of the executive branch of government, to remove the appointed head of State and to do away with the Military Forces. However, they are convicted only of plotting to assassinate the Prime Minister and nothing else and it is to that plot that the sentence must relate. The ancillary facts are however something I can take into consideration. The 2nd, 3rd, 6th, 7th and 8th accused were all previously members of the RFMF Counter Revolutionary Warfare Unit (CRW) and were employed as bodyguards and drivers. The fourth accused was employed in the business as General manager/marketing – the business being called Pacific Connex. The fifth accused had no known connection with Ballu Khan.
   
7. By its very nature, a sentence for a conspiracy charge cannot favour or disfavor any particular conspirator. They are "in it together" and will be punished together. The Court can nevertheless make adjustments to the sentences to reflect the roles of ringleaders, organizers or "footsoldiers".
   
8. I take as my starting point a term of imprisonment of 6 years for each and everyone of you and I come to each accused in turn to determine a final sentence on you.
   

First Accused

9. Ratu Inoke Takiveikata, you are a high chief of your province, and as such you have enormous influence and status, not only in your province, but in the whole of these islands of Fiji. Whilst the Court has great respect for your national identity and status, that rank can bring you no favours here. Everyone who sits in the dock of this Court sits there as an equal with all the others before the Law and it would be wrong to show you mercy because of your position. On the contrary, Ratu Inoke, someone of your status should be using your position to bring stability and progress to the country not to seek to wreak havoc on the nation. If your plans had succeeded it would not only have brought misery on your own people in Naitasiri, but misery, lawlessness and uncertainty to every man and woman who lives in this Republic. There lies the great shame in your present predicament. You were a founder of the SDL party, you were a business partner in Pacific Connex. You had every motive for having the Military weakened. You provided your house, your farm and your commercial building in Nausori for the meetings these conspirators held. I find that along with Ballu Khan you were a prime motivator of the conspiracy. You played a large part in facilitating that conspiracy and I regard that as a seriously aggravating feature.
   

10. Mr Naco has brought powerful mitigation before the Court on your behalf. We heard from Peceli Kinivuwai, the National Director of the SDL party. He has known you for 7 years and told us that you were the principal architect of the formation of the party. Following the disastrous events of 2000, he said you were one of the few to seek a peaceful solution to the crisis, to form a party and lead Fiji to prosperity. The Reverend Poate Mate told us he knows you intimately. He told us of how you helped to facilitate the spiritual development of the Naitasiri people, what a strong and humble character you are, how wise, tactful and open you are. Mr Naco told me of the committees you serve on in your province and how you served the country as a Senator for 3 years. He asked me to take into account your "advanced" age of 63 and your minimal role in the conspiracy. He submits that your deeds in this case were totally out of character and that you should be given credit for your service to your country.

11. I cannot agree that 63 is "old" and should be a consideration in sentence, nor can I accept the evidence that you were seeking to lead Fiji to a state of security and prosperity, given the evidence the assessors have obviously accepted in this case.
    
12. However, the Court does accept that there are genuine mitigating factors to your advantage (including time spent in custody) and to reflect these 12 months is deducted from the 6 year starting point. The serious aggravating features I mention in para 9 lead me to add 2 years to that sentence, making a total sentence you will serve to be one of seven years
    

Second Accused

13. Feoko Gadekibua, you were a driver bodyguard for Ballu Khan and were in attendance at nearly all the meetings. There is no evidence that you contributed to those meetings or played any role in organising matters. It is relevant however that you acted by searching Kuli’s group before the meeting at Sabeto. This added to the evidence of clandestine meetings.
    
14. Evidence of good character was called on your behalf. Sisaro Lakeba is a Methodist pastor from Tovata. He has known you since you were a kid and he says you were "different". You had been a churchgoer since childhood and you involved yourself a lot with church groups. You used to help out a lot, especially with the 4,000 member volunteer group. You are known to help foster released prisoners and look after street kids.
    
15. Despite your counsel’s plea, I cannot accept that the mutiny conviction is irrelevant to this Penal Code offence. Previous convictions speak to character no matter under what jurisdiction they arise within Fiji and a conviction for mutiny which is highly relevant in these circumstances cannot afford you any credit. Also that conviction destroyed all of the prior military commendation that your Counsel seeks to rely on.
    
16. You were originally in custody for this offence for 40 days and I give you credit for that. For time spent and for your relevant mitigation I give you credit of 14 months, making a total of 4 years and 10 months. You played a very minor role in this plot, albeit an active one on occasions and for that aggravation I add another 8 months. The total sentence you will serve will be five years and six months.
    

Third Accused

17. Barbados Mills, as Head of Security for Ballu Khan, you were obviously heavily under his influence. However the evidence shows that you were instrumental in organizing the furtherance of this conspiracy by arranging meetings, paying for transport, selecting training sites, supervising training and generally urging the others on. I find these overt acts to be seriously aggravating features in your case.
    
18. You are 32 years old with a wife, a young daughter and a child due to be born any day. You are a part time farmer selling cash crops to support your young family. You called one character witness a Mr Pio Rasele. He is a worker in the Catholic church in Nadera. He has known you for 23 years. He tells me that you are reliable, trustworthy diligent and intelligent. He attests to the physical and emotional pain you have been going through since your arrest and assures me that you cannot settle down.
    
19. Your counsel urges me to take into consideration the fact that this trial has been hanging over your head for 3 years and the humiliation and publicity you have experienced. That is a submission I cannot accept. Delays to the bringing of this case to trial can be blamed on both the Prosecution and the Defence and while you do obviously have the right to have the evidence against you aired, acting in a manner which brings suspicion on yourself necessarily results in publicity and consequent humiliation.
    
20. Your counsel submits that credit should be given to you for "entrapment" that submission pre-supposes that there was indeed entrapment. In my view there was no such thing. In the hearing of the Stay application (HAM 039 of 2008), when dealing with this point Bruce J said:
    

"nowhere in the rest of his statement does he (Cpl. Kuli) incite or cajole the others to conspire to murder in the statement, he plainly goes along with what was suggested. That was part of his "cover" or "role" of pretending to be a sympathetic and disaffected military officer. In my view, this does not amount to state-created crime"

(para 110).

This submission is not available to your mitigation.

21. For your relevant mitigating features which are not particularly strong, but which include credit for the 40 days you spent in custody I award you a discount of 12 months. For the aggravating features I refer to earlier, I add another 18 months making a total sentence you will serve of six years six months.
    

Fourth Accused

22. Sivaniolo Naulago, as a I have said in Court, your situation is profoundly sad. You were a man of great promise with educational and occupational achievements of outstanding merit. Had you not been, as your Counsel puts it "in the wrong place, at the wrong time", you could have been a great Fijian businessman or entrepreneur but you fell under the spell of Ballu Khan and the first accused, and you took to this plot with great gusto.
    
23. Your counsel invites me to infer that your role in this venture was minimal but I disagree. You were one of the driving forces behind this plot, you were the brains behind the brawn. You conducted the briefings and plannings, all along pushing for the decimation of the army and elimination of Indo-Fijians along the way. You were not at all the meetings, and on some occasions just drove others. The circumstantial evidence against you is overwhelming and for your major role I will add time for such aggravating features.
    
24. The mitigation advanced on your behalf is considerable and varied. Your education and employment record is prestigious however that can also work to your disfavour. A man of your education and experience in life should have known better than to become embroiled in such nefarious activities. Much of the mitigation submitted on your behalf is self serving – in particular your dedication to the Nadi Rugby Union and to your church. There is however before the Court details of your generosity to relatives and friends and your tireless work on behalf of your Yavusa. The Reverend Naquto told us of your work with the youth in the church and of the Yavusa’s pride in your achievements. In recognition of the relevant mitigation I discount the starting point by 2 years, however for the seriously aggravating features I have referred to and in recognition of the finding of this Court that you were a "major player" in this conspiracy I increase that sentence by a further 3 years meaning that you will serve a total of seven years.
    

Fifth Accused

25. Metuisela Mua, you are what I regard as the "mystery" man. There is no evidence of how you came to be involved, nor of any relationship you may have had with Ballu Khan, but the evidence shows that you were present at one meeting at Khan’s house where you exhorted the conspirators to carry out the job thoroughly "right to the end, not like 2000". Nothing more, nothing less. I regard your role as minimal and I add nothing to the starting point to reflect any aggravating feature.
    
26. A Mr. Saula gave character evidence on your behalf. He told us of your joint efforts with community projects, men’s fellowship work and organization of further education for students. Your counsel reminded me of your long service in the Civil Service and in the Military. You have served on peace keeping missions both in the Sinai and in Lebanon and you were wounded in action. You gave long service to the nation as Director of Intelligence Services. You are now 66 and both you and your wife are in poor health.
    
27. For a man at your stage of life to get involved in affairs of this kind is inexplicable. You must benefit from obviously compelling mitigation (including your age, your state of health and time spent in custody). From the starting point of 6 years, I deduct 30 months and you will therefore serve a term of imprisonment for three years and six months.
    

Sixth and Eighth Accused

28. Eparama Waqatairewa and Pauliasi Namulo, you are former C.R.W soldiers who were in the employ of Ballu Khan. As such, it was clearly evident that you would be seen at his house. The assessors had evidence of your previous convictions for mutiny in November 2000 and they obviously used that to convict you of this offence. That they were entitled to do.
    
29. The previous convictions are subsumed in the starting point of 6 years I gave to each of you for this offence and there is nothing to warrant the Court adding to that further. However your obvious lack of participation in meetings, planning or training must afford you both some discount from the starting point and that credit will include considerations of time spent in custody, and other mitigation advanced by your counsel and by a reference from the Methodist Church for the 6th accused. You will each receive a discount of 3 years which means that each of you will serve a term of imprisonment for three years.
    

Seventh Accused

30. Kaminieli Vosavere, were it not for the meeting at the foreshore with Mills and Cpl. Kuli, you would have been in the same position as the 6th and 8th accused. There is nothing to show that you participated in the meetings or training apart from this meeting where you with great bravado said "I have the mind of an officer and I too can make plans". This is clearly evidence of agreement to the conspiracy which the assessors obviously acted on.
    
31. Pastor Namara gave evidence of the work you did in his church for the elderly, the youth and the orchestra and this must be taken into consideration along with the time you spent in custody after arrest. From the starting point of 6 years, I add nothing for aggravation but I deduct two years for mitigation and to reflect your culpability and you will therefore serve a term of imprisonment of four years.
    
32. The terms of imprisonment are therefore:
    

1st accused - 7 years.

2nd accused - 5 years 6 months

3rd accused - 6 years 6 months

4th accused - 7 years

5th accused - 3 years 6 months

6th accused - 3 years

7th accused - 4 years

8th accused - 3 years.

P.K. Madigan
Judge

At Suva
5 March 2010