Tuitokova v The State [2005] FJHC 420; HAA0067S.2005S (14 November 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. Nos: HAA0067, 70 & 73 of 2005S

Between:

APOROSA TUITOKOVA;
AMENATAVE QALITUIBAU;
LUKE NAVUDA;
JOSEVA TUKANA;
SEVANAIA DONU;
SAIMONI LOGA; and
FILIPE WILIKIBAU
Appellants

And:

THE STATE
Respondent

Hearing: 9th November 2005
Sentence: 14th November 2005

Counsel: Mr. A. Rayawa for State
Mr. M. Maitava for Appellants

SENTENCE

The facts of this case are now much clearer than the facts led in the Magistrates’ Court. They are, that in 2004 and 2005, the village of Malawai in Gau became divided as a result of the installation of the Tui Malawai. The hearing of this sentencing inquiry could not, and should not be considered a hearing of the relative merits of any one claim to the title. This hearing was ordered because the sentences imposed in the Magistrates’ Court were set aside on appeal and I have held that fresh sentences could not be passed without a hearing on the background to the incident. However when Laisenia Bale retired to the village in Malawai, he disagreed with the installation of the then Tui Malawai. Village meetings were held to resolve the dispute. There was no resolution. Mr. Bale then realized that several men, who held the title of or were of the same i tokatoka as the Tui Malawai, died. He told his fellow villagers that they died because they were cursed by the vanua for the wrongful installation of the chief. He said that he was accused of putting these men to death himself, by the use of witchcraft.

The result of this most serious dispute was that the relationships in the village deteriorated. Mr. Bale’s son, Waisale Tuimaloku became a member of the Seventh Day Adventist Church. The majority of the village members were, and are, Methodists. Mr. Tuimaloku said that initially he was not permitted to hold church services at Malawai, but the position has now changed. He is the talatala for the Adventist congregation. This witness, a most candid and responsible man, gave evidence of the ongoing dispute in the village and the fear experienced by his family when his house was attacked.

Also in evidence at the sentencing inquiry, was the testimony of Timoci Serukalou, a former turaga-ni-koro of Malawai. The 2^nd Appellant is his son. He agreed that the dispute is unresolved, that tension is still high in the village, and that the Appellants were all subjected to village talk and complaints about witchcraft. He agreed that all the Appellants may have been influenced by discussions on the subject amongst the elders.

In Kelemedi Lagi and Others v. State HAA0004 of 2004S, I set out guidelines for sentencing on counts of arson. Sentences range from 2 years imprisonment to 4 years imprisonment. Sentences of 2 years have been upheld where there was no danger to human life (Amina Koya v. The State CAV0002.1997) and sentences of 4 years upheld where the house burnt was occupied and there was a reckless disregard for human life (Donato Vakabale v. The State Crim. App. No. HAA0051).

In this case the 5^th Appellant is convicted of attempted arson. The 6^th and 7^th Appellants are convicted of arson. In Case No. 521.2005 (HAA0067 of 2005) Aporosa Tuitokova and Amenatave Qalituibau set fire to the vacant house of Waisale Tuimaloku. The fire caused extensive damage. The victim and his family no longer live there. They live in fear and the house was built with the hard-earned income from farming, of the victim. The starting point is 3 years imprisonment. Aggravating factors are the damage done to the property, the serious trauma caused to the victim and his family, the consumption of alcohol and the fact that the Appellants took the law into their own hands to solve a village dispute. In fact their behaviour endangered the attempts of the village to solve the matter amicably. Mitigating factors are good character, youth (they are 19) and the fact that they may have been manipulated by others in the village. I sentence both men to 3 years imprisonment.

Saimone Loga (in HAA0070.2005) is convicted of attempted arson, on the 1^st of March 2005, on the house of Kevueli Vomo. He, and the other Appellants are also charged with throwing stones at the same dwelling house. Although an attempt is never as serious as the full offence, the facts of this case are very serious. They threw stones at the house. Then Saimone Loga, went inside the house and set fire to the curtains. The fire was later put out but the house was occupied. For this reason, on the charge of attempted arson, I pick as my starting point, 2 years imprisonment. After taking all the aggravating and mitigating factors into account, I arrive at a sentence of 3 years imprisonment for Loga. On the charge of throwing object, I pick 12 months imprisonment as my starting point for all Appellants. After adjusting for youth, guilty plea, good character and remorse, as well as gang violence and trauma to the victims, I arrive at 6 months imprisonment. In respect of Loga, this is to be served concurrent to the attempted arson sentence.

In HAA0073 of 2005S Saimone Loga is charged with the arson of the house of Laisenia Bale and with the other Appellants, with throwing stones at the house. The house was occupied, the damage caused was $10,000, and the victim was traumatized by the event. At home at the time was an old and disabled man, a pregnant woman and small children. There is no prospect of compensation. None of the Appellants has a job with wages or salary. The starting point must be 4 years imprisonment. The fact that it was suspected by other villagers that the victim was a witchdoctor, or was causing trouble in the village, is not mitigation. There can be no excuse of taking the law into one’s own hands, no matter how severe the provocation. After taking into account all aggravating factors and mitigating circumstances in particular the youth and good character of the Appellants, I sentence Saimone Loga to 4 years imprisonment on the charge of Arson, and all Appellants to 6 months imprisonment on the count of throwing object.

The sentences are in relation to separate offences and would normally lead to consecutive terms. However, given the youth of the offenders, I order that these terms be served concurrently with each other.

The sentences are therefore as follows:

HAA0073 of 2005

Count 1 - 6 months imprisonment

Count 2 - 4 years imprisonment

HAA 70 of 2005

Count 1 - 6 months imprisonment

Count 2 - 2 years imprisonment

HAA 67 of 2005

(For both offenders)

- 3 years imprisonment

All terms are concurrent to each other.

Finally, I do not see these sentences to resolve the dispute that exists. The only message which is sent to the community is that no matter how strong feelings might get in a village dispute, the law must prevail, and everyone must respect it. It is unfortunate that the failure to solve a leadership dispute has led to the involvement of young men in serious criminal activities. However, each Appellant must take responsibility for his own actions. It is hoped that each Appellant has learnt that he has to be accountable for breaking the law, as an individual, even if he was persuaded or manipulated by others to attack the victims.

Nevertheless, there is still a serious problem existing at Malawai, which should be addressed before other more serious problems are caused. By copy of this judgment, I draw to the attention of the Ministry of Fijian Affairs, a matter which in my opinion, requires urgent attention.

Nazhat Shameem
JUDGE

At Suva
14^th November 2005