State v Riogi [2002] FJHC 322; HAA060.2001S (6 November 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA060 OF 2001S

Between:

The State
Appellant

And:

Gagaj Rafeok Riogi
Respondent

Counsel: Mr W. Kurisaqila for Appellant
Mr T. Fa for Respondent

SENTENCE

On 20th August 2001, a conviction was entered in this court pursuant to the State’s successful appeal against the acquittal in the Suva Magistrates’ Court. By consent of both counsel, and pursuant to the powers of the High Court under section 319(1) of the Criminal Procedure Code, which allows the court to “exercise any power which the magistrate’s court might have exercised”, I have proceeded to sentence.

There has been some delay in proceeding to sentence because the Respondent has been out of the country, and has not been permitted to return under the Immigration Act. However, once the restriction was lifted, the Respondent himself has written to the court on the 30th of November 2001, and the 30th of July 2002 asking for sentencing to be adjourned to allow him to be here. On the 23rd of August 2002, with the agreement of both counsel, the Respondent was informed by letter that he would be sentenced today and that sentencing would proceed in his absence, if he did not attend court. He did not appear today.

Section 28(1)(h) of the Constitution provides that every person charged has the right:

“Not to have the trial take place in his or her absence unless:

(i) the court is satisfied that the person has been served with a summons or other process requiring his or her attendance and has chosen not to attend;”

In this case the Respondent has sought adjournments on several occasions. This shows that he is aware of the proceedings, and of the new dates set. Further, the Chief Registrar wrote to him at his New South Wales address informing him that he would be sentenced today. In the circumstances I consider that the Respondent is aware of the proceedings and has chosen not to attend. In proceeding to sentence him in his absence, I am of the view there is no breach of section 28 of the Constitution.

The maximum sentence for sedition under section 66(1) of the Penal Code is two years imprisonment and/or $200 fine for a first conviction. There are no comparable cases decided in Fiji which might give me assistance in arriving at an appropriate sentence.

However I have taken into account all that has been said on the Respondent’s behalf by counsel. In particular, I take into account the fact that he has been acting under the guidance and directions of the Gagaj Sau Lagfatmarau who is resident in Australia, that the Respondent has conducted his affairs in accordance with the wishes of his Clan, and that he was genuinely (but mistakenly) of the view, that he was acting lawfully.

However I must also consider the real disruption of the lives of ordinary Rotumans as a result of his actions, and the fact that he appears to have consciously chosen a time to install the Gagaj Kausakmua, when Fiji and Rotuma were experiencing a period of intense political and social disruption. His actions did nothing to assist in the process of nation-rebuilding. For these reasons, I consider a term of one year imprisonment to be appropriate.

As to the question of suspension of the sentence, the facts of this case would ordinarily call for an immediate custodial sentence.

However, there has been considerable delay in sentencing for reasons which were partially beyond the Respondent’s control. Further he has no previous convictions and there is no adverse report of his character. This factor weighs heavily in his favour.

For these reasons, I have decided to suspend the sentence pursuant to section 29(1) of the Penal Code, for a period of two years.

The sentence is therefore one year imprisonment suspended for two years. This means that if he re-offends in the next two years, he may have to serve the one year term I have imposed, in addition to any term imposed for the subsequent offence. A copy of this sentence is to be sent forthwith to the Respondent.

Nazhat Shameem
JUDGE

At Suva
6th November 2002