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State v Takiveikata [2011] FJHC 134; HAC005.2004 (4 March 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC005 of 2004

STATE

V

RATU INOKE TAKIVEIKATA

Hearing Dates: 16 – 28 February 2011
Sentence: 4 March 2011

Counsel: Mr. P. Bulamainaivalu & Mr. P. Katia for State
Mr. V. Vosarogo for Accused

SENTENCE

[1] Ratu Inoke Takiveikata, you stand before this court, convicted of inciting to mutiny after trial. I do not hold against you that you exercised your right to a trial. Like any other citizen, you were tried in accordance with the law.

[2] You expressed no remorse for your crime apart from your counsel's plea for mercy. Remorse is an expression of accepting responsibility for your conduct. You may have sought forgiveness from the victims, but forgiveness without accepting responsibility, is not a genuine acknowledgement of contrition. By not accepting any responsibility for your crime, you have deprived yourself of credit that is given to offenders who express remorse.

[3] Inciting to mutiny is a serious offence. A person convicted of this offence is liable to be imprisoned for life. The life imprisonment is discretionary.

[4] The incitement that occurred in this case is serious. You urged two military officers belonging to CRW Unit to remove the Commander of RFMF by taking over the military barracks. One of the officers, Shane Stevens was a senior military officer who managed to team up a group of soldiers to turn against their own Commander.

[5] On 2 November 2000, Stevens and his team attempted to takeover the military barracks. Soldiers loyal to the Commander resisted the takeover. There was a cross-fire exchanged between the loyalist and the rebellion soldiers at the military barracks.

[6] As a result of the cross-fire, eight soldiers were killed, eighteen soldiers were hospitalized with serious gunshot injuries and two civilians were injured outside the barracks from stray projectiles.

[7] In your first trial, you were sentenced by Gates J (as he was then) to life imprisonment for this office. His Lordship took the view that your sentence should not be any different from the sentence imposed on Stevens who you had incited. The plan to use CRW soldiers to remove the Commander was your brain child. The reason you targeted the CRW soldiers is because you already knew some of them had rebelled against the military authority during the George Speight coup.

[8] In this re-trial, evidence was led that the strategy for the takeover was left to Stevens to devise. Bonafasio whom you also incited said in his evidence that you did not want any bloodshed. That may be so, but, you must have realised that forceful removal of the head of military authority cannot occur without resistance. Stevens disclosed to you the strategy he was going to use to execute the takeover and you agreed to provide arms and civilian support. You agreed to use your chiefly status as the Qaranivalu to gather support from your people to go to the barracks when Stevens was going to execute the takeover.

[9] You may have been driven to incite Stevens because of concerns expressed to you by your people about the conduct of the military following signing of Muanikau Accord. You were a mediator between George Speight's group and the military for the release of hostages in parliament during May 2000. You felt you had to act when people approached you. Unfortunately you decided to venture into a dangerous path to remove the Commander by inciting his soldiers to resist his authority.

[10] The title of Qaranivalu was bestowed to you to bring honour to your people. Instead you have brought them disgrace. Your action was deliberate and calculated. The consequences of your action were catastrophic.

[11] Where the law simply provides a maximum sentence of life imprisonment, the court is given a very wide discretion to determine the appropriate penalty based on the facts of each case.

[12] The offence of inciting to mutiny is rarely committed and there are no cases in Fiji, for guideline. Counsel for the State referred the court to a judgment of the Supreme Court of Papua New Guinea for guideline.

[13] In Wafia v. State SC851" title="View LawCiteRecord" class="autolink_findcases">[2006] PGSC, SC851 (1 December 2006), the offender was convicted on a similar inciting to mutiny provision as in Fiji and was sentenced to 15 years imprisonment by the trial court. On appeal against sentence, the Supreme Court of Papua New Guinea observed at page 12:

"On a charge of incitement to mutiny this activity warranted a higher sentence than those who later led and incited continuation of the mutiny in other forms. We consider a sentence of 20 years would not have been inappropriate for an initial inciter. However, there has been no cross- appeal by the Public Prosecutor so that, despite our undoubted power to increase sentences, we will not disturb the sentence of the trial judge, which we consider to be within the proper range for the offence."

[14] When the court is minded to impose the discretionary life imprisonment, there are strict requirements to be met before such discretion is exercised.

[15] In the case of Hodgson (1967) 52 Cr. App. R. 113, the English Court of Appeal laid down the following guidelines for imposition of discretionary life sentence. The Court said at page 114:

"When the following conditions are satisfied, a sentence of life imprisonment is in our opinion justified: (1) where the offence or offences are in themselves grave enough to require a very long sentence; (2) where it appears from the nature of the offences or from the defendant's history that he is a person of unstable character likely to commit such offences in the future; and (3) where if the offences are committed the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence."

[16] In the later case of Chapman [1999] EWCA Crim 2056; [2000] 1 Cr. App. R.(S) 377, the English Court of Appeal confirmed that Hodgson guidelines by stating the following at page 385:

"It is in our judgment plain, as the court has on occasion acknowledged, that there is an inter-relationship between the gravity of the offence before the court, the likelihood of further offending, and the gravity of further offending should such occur. The more likely it is that an offender will offend again, and the more grave such offending is likely to be if it does occur, the less emphasis the court may lay on the gravity of the original offence. There is, however, in our judgment no ground for doubting the indispensability of the first condition laid down for imposition of an indeterminate life sentence in Hodgson, re-affirmed, as we say, in the more recent Attorney-General's Reference No. 32 of 1996 (Whittaker). It moreover seems to this court to be wrong in principle to water down that condition since a sentence of life imprisonment is now the most severe sentence that the court can impose, and it is not in our judgment one which should ever be imposed unless the circumstances are such as to call for a severe sentence based on the offence which the offender has committed."

[17] In my mind what else could be a substantially grave offence than to incite a mutiny that resulted in deaths of soldiers and serious injuries to others. Your disaffection towards the Commander was a personal matter. You put others' lives at risk for your personal agenda.

[18] I am satisfied that your case meets the Hodgson guidelines. Firstly, the incitement is grave enough to attract a substantial sentence. Secondly, by inciting an offence to subvert the military authority using your prominence and influence as the holder of the title Qaranivalu, you might remain a serious danger to the public for a period which could not be reliably estimated at this stage. I say this because any rebellion among military will have dire consequences to the law and order in the country.

[19] After the Court of Appeal allowed your appeal against conviction, you were released from prison in June 2007.

[20] Following your release from prison on bail pending re-trial, you did not waste any time to embark on another unlawful course against the Commander. This time, you planned with the rebellion CRW soldiers, to kill the Commander who by that time had become the Prime Minister. The plot to kill the Commander was detected; you were charged and tried together with the CRW soldiers, and on 5 March 2010, sentenced to 7 years imprisonment for conspiracy to murder (State v. Takiveikata HAC009/2008).

[21] Your subsequent offending is highly relevant. Further to my earlier finding that you continue to pose a serious threat to the public safety, your subsequent offending also leads me to believe that you might remain a serious danger to the public safety. Both general and special deterrence applies to your case.

[22] For these reasons, in the exercise of my discretion I sentence you to life imprisonment.

[23] At the time of the offending in this case you were 53 years old. You did not have any significant previous convictions before 2000. You are now 63 years old. I give weight to your good character before you offended in 2000 and the contributions you made to your people as their paramount chief.

[24] The offence is nearly ten years old. I consider the age of the offence in your favour. I take into account that you had served two years and seven months before you were released on bail for this re-trial.

[25] Your counsel informed this court that in 2007 you were diagnosed with prostate cancer and that in 2008 you had undergone a surgery.

[26] I take all these matters into account to fix a non-parole period for 8 years. I order that you serve this sentence concurrently with your pre-existing sentence. Your sentence means that you will only be released from prison after 4 March 2019 on a license and will be subject of recall to continue serving your life imprisonment if you breach any conditions of your release.

[27] You may appeal against your conviction and sentence with the leave of the Court of Appeal within 30 days.

Daniel Goundar
JUDGE

At Suva
4 March 2011

Solicitors:
Office of the Director of Public Prosecutions for State
Mamlakah Lawyers for Accused