State v Tanaburenisau [2005] FJHC 497; HAC0044T.2004S (16 August 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Action HAC0044.2004S

STATE

V

ATONIO TANABURENISAU

Fiji High Court, Suva
16th August 2005
Gates J

SENTENCE

Taking an engagement in the nature of an oath to commit a capital offence, s.5(b) Public Order Act Cap 20, read with section 50 of the Penal Code; plea of guilty to single count; maximum sentence life imprisonment; tariff 2-6 years; early plea of guilty; 57 year old; Member of Parliament at time; treated as without criminal record; good history of local public works; got carried away at time of coup; apology to all who suffered as a result; gravity of offence to Rule of Law; lesser role.

Ms A. Prasad with Ms V. Lidise for the State
Mr T. Fa for the Accused [Tanaburenisau]

[1] On 22^nd April 2005 this Accused pleaded guilty to a single count of taking an engagement in the nature of an oath to commit a capital offence, contrary to section 5(b) of the Public Order Act Cap 20 read with section 50 of the Penal Code. On 23^rd May 2005 the facts were outlined to the court and mitigation put forward. The Accused was bailed to attend court again when called upon for sentence, which was to follow upon the end of the trial for his Co-Accused.

Facts

[2] The Accused was a Member of Parliament for Namosi Fijian Provincial Communal Constituency having won his seat in the 1999 General Election. On 19^th May 2000 he was present in Parliament as a backbencher when the George Speight group entered under force of arms. Thereafter the Accused attended several meetings preparatory to the appointment of a Taukei Civilian Government to replace the lawfully elected Government.

[3] As a result, the Accused was offered the post of Assistant Minister for Environment. The Accused was a member of the Fijian Association Party. Before the party members left the Parliamentary complex, the leader of that party held a meeting of its members. He advised the parliamentary members to take the opportunity to leave, and not to take up any illegal Cabinet positions. But the Accused did not follow this advice and stayed on.

[4] The Accused was sworn in, at the afternoon ceremony on 20^th May 2000. He took the oath, being sworn on the bible before Ratu Jope Seniloli the Interim and unlawful President. He then signed the oath document.

[5] In interview on 24.4.01 the Accused readily admitted that he had been sworn in. At the time of the armed takeover he had been tied up. He said at first he signed the oath document “because they were holding guns”. He denied attending meetings, said he did not support the George Speight group and only took the oath to be released. He eventually left Parliament and did not return again. He said he knew nothing about the coup.

Mitigating factors

[6] Soon after the Accused had obtained the help of his lawyer Mr Fa, he made his plea of guilty. I shall treat this plea therefore as an early plea of guilty. In addition he has kept to his conditions of bail and come up for sentence when requested by the court.

[7] Although his record is not entirely clean and he has served a term of imprisonment, his offending and last offence were a very long time ago. I shall treat him therefore as a person without criminal record.

[8] He is now 57 years old, living in the village in Namosi with his mother. After school he became a technical officer, and worked on various research and engineering projects in Fiji. In 1991-92 he studied for and graduated with a Diploma in Geology from the USP. From 1993 he helped with various projects in the village including the setting up of a school.

[9] His involvement in village works no doubt helped to get him elected as the representative for the local constituency.

[10] Mr Fa in his purposeful mitigation said of the offence that the Accused had got carried away and did not know what he was doing. There was no-one to tell him that what they were doing was wrong. In this matter he had quickly responded to Mr Fa’s advice.

[11] Through Mr Fa, he apologised to the court, to the people of Fiji, to the hostages, and to the Prime Minister Mr Mahendra Chaudhary. He came in at the end, without thinking said Mr Fa.

Aggravating factors

[12] The gravity of the offence lies in the effect of what the Accused did. The formation of the illegal Cabinet gave support to the overthrow of a democratically elected government. It gave authority to the taking of hostages, who comprised the Prime Minister of the day and the lawful Cabinet, and led on to the removal of the President. It was an unjustified breach of the Rule of Law, which caused great economic loss to the nation, and considerable loss of reputation and prestige to Fiji internationally.

[13] I accept that all of this was not considered by the Accused. However he cannot escape some responsibility for the consequences of what he did, by joining the illegal Government and agreeing to be sworn in as a minister.

Conclusion

[14] The maximum penalty for this offence is life imprisonment. Undoubtedly for a country at Fiji’s stage of democratic development, this was a very serious offence.

[15] However I regard you as one of the persons with a lesser role in this whole matter. I take into account your age and background. I accept that you got carried away and did not think of the consequences to yourself, to your people in Namosi or to the country as a whole.

[16] I have had regard to the sentencing in the related cases of State v Ratu Jope Seniloli and Others (unreported) Suva High Court Case No. HAC0028.2003S, 6^th August 2004 per Shameem J and of State v Viliame Savu (unreported) Cr. Action No. HAC0010.2002S. It could be said there is a range of sentences between 2-6 years depending on role. I start at 3 years imprisonment, but I am prepared to reduce that by 1 year for the early plea of guilty.

[17] Because of your age, your minor role, and the genuine remorse shown in your public expression of apology, I am prepared to suspend the sentence. You are therefore sentenced to a term of 2 years imprisonment suspended for 2 years from today. I hope in your future political career that you will not involve yourself in such unlawfulness, and that you will respect the Rule of Law in Fiji, and tell others to do the same. I shall now explain what that means.

A.H.C.T. GATES
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions, Suva
Solicitors for the Accused: Messrs Tevita Fa & Associates, [Tanaburenisau] Suva