State v Tora [2005] FJHC 538; HAA0043.2005L (27 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0043 OF 2005L

STATE

v

APISAI TORA
PENIASI SABOLO
VILIAME RAKULI
PAULA SAUKURU
NAPOLIONI VASU
MOSESE TUISA
PENE RAICEBE
VELA TAWAKE
PENIASI QORO
ANANAIASA MOCEI
APENISA NAYATE
ACA TUIGALOA
KINISIMERE QORO

Mr. K. Tunidau for the State
Mr. I. Khan with Mr. F. Koya for the Respondents

Date of Hearing: 26 September 2005
Date of Sentence: 27 September 2005

SENTENCE

Each of the respondents were on the 19^th September 2005 convicted by me of the offence of Unlawful Assembly contrary to section 86 of the Penal Code.

The respondents each pleaded not guilty before the Learned Magistrate and after trial were acquitted.

The State appealed. The appeal was allowed and the order of acquittal quashed and convictions entered.

The respondents first came before the Nadi Magistrates Court on the 24^th February 2003. The trial commenced on the 6^th April 2004.

The Learned Magistrate ruled that there was a case to answer on the 17^th September 2004 and the respondents each made unsworn statements on that day. On the 3^rd November 2004, the Learned Magistrate delivered his judgment acquitting all of the respondents.

Section 87 of the Penal Code provides:

“Any person who takes part in an unlawful assembly is guilty of a misdemeanour, and is liable to imprisonment for one year.”

The facts as found are that between 100 and 200 people converged on the military checkpoint on the Queens Road at Sabeto junction on the night of the 13^th/14^th July 2000. The people were being led by the 1^st respondent Apisai Tora. Some of those present were wearing red headbands and there was much shouting.

The highway was blocked with sandbags, sugarcane and people. Traffic could not pass. The military retreated for the safety of the army personnel.

Some time on the 14^th July 2004 some of those present presented a traditional sevusevu to the army officers and handed control of the checkpoint back to them.

The 1^st respondent said to the officer on arrival at the checkpoint that the assembled group were not supporting George Speight but were lending support to the appointment of the then Vice President, Ratu Josefa Iloilo, the Tui Vuda as President of the Republic of the Fiji Islands. The Great Council of Chief were then meeting to make an appointment of the President.

The country was in turmoil with the government having been overthrown on the 19^th May 2000 when George Speight and others took over the Parliament and parliamentarians were held hostage.

In mitigation, it is submitted on behalf of the 1^st respondent, Apisai Tora, that he is 71 years of age, married man with 6 children and several grandchildren. He is the president of the Fiji Ex-Servicemen League. He served for 5 years in the Fiji Military Forces including 2 years of overseas service in Malaya. He is a Senator. That he served the country as a minister and politician for many years and that he is currently suffering from having had a hip replacement earlier this year.

The 2^nd respondent, Peniasi Sabolo, it is submitted is 62 years of age. He is married with 3 children. He is a farmer and a Sugar Cane Gang Sirdar. He is a lay preacher in Sabeto Village and a community worker of the village school. He works on his farm and has no prior convictions.

The 3^rd respondent, Viliame Rakuli is 71 years of age and is married with 4 children. His wife has died. He was a village headman for some 5 years. He works his farm and he has no prior convictions.

The 4^th respondent, Paula Saukuru is 53 years of age and is married with 5 children. He is a District Director with the Sugar Cane Growers Council, Board Member of the Sugar Cane Growers Fund and a Councillor of the Sugar Cane Growers Fund. He is a member of the Lautoka Mill area and a Board Member of the Western Division Drainage Board. He has no previous convictions.

The 5^th respondent, Napolioni Vasu is 69 years of age and is married with 3 children. He is a farmer by occupation and he is head of the Tokatoka. He is chairman of the Sabeto Methodist Evangelist Group and village community and charity worker. He is a lay preacher in the Sabeto Village Church. He works his farm and he has no prior convictions.

The 6^th respondent, Mosese Tuisa is 59 years of age and is a divorcee with 2 children. He is a lay preacher and leader of his church choir. He works his farm and he has no prior convictions.

The 7^th respondent, Peni Raicebe is 60 years of age and is married with 5 children. He is a farmer. He does community work in the village. He works his farm and he has no prior convictions.

The 8^th respondent, Vela Tawake is 44 years of age, single man and a villager. He does village work. He organizes and leads sporting groups to Australia. He was involved with the Sabeto Rugby Club and he has no prior convictions.

The 9^th respondent, Peniasi Qoro is 27 years of age and the youngest of all respondents. He is married with no children. He is a farmer. He is also a lay preacher and has no prior convictions.

The 10^th respondent, Ananaiasa Mocei is 42 years of age and is married with 3 children. He is a farmer. He is also a lay preacher. He has one prior conviction. He devotes most of his time in the village community works and his family.

The 11^th respondent, Apenisa Nayate is 51 years of age. His wife is a deceased and he has 1 child. He is a farmer. He was a village headman for 10 years. He is involved in village community work and no prior convictions.

The 12^th respondent, Aca Tuigaloa Saukuru, 49 years of age and is a divorcee with 4 children and a Company Director. He is a committee member of the Namaka Public School. He is a volunteer of Namaka Police Station to be the co-ordinator of Community Policing in Namaka area which include Sabeto. He has no prior convictions.

The 13^th respondent, Kinisimere Vanua Qoro is 58 years of age, married with 3 children and a housewife. She is a member of the Sabeto Women’s Group, a member of the Church Choir and supports her husband in the farm and again has no prior convictions.

It is submitted on behalf of the respondents that they will not re-offend and that a suspended sentence or a fine would be an appropriate penalty. The use of section 29 of the Penal Code which relates to suspended sentences was considered by the High Court in The State v Senitiki Naqa & Others – Cr. App. No. HAA0023 of 2003S. I do not consider such a penalty to be appropriate in the circumstances of this matter.

Counsel for the Respondents refer the court to the penalty imposed on the 3 co-accused who pleaded guilty and dealt with by the Learned Magistrate on the 13^th October 2003 when he released those accused on a bond for 3 years. Those 3 accused pleaded guilty at a very early date and were therefore entitled to the maximum discount. Whilst the respondents are not to be punished for exercising their right to plead not guilty, in doing so, however they forego the right to the discount that they would receive in entering a plea of guilty at an early date.

A fine is also an inappropriate penalty for this offence.

A custodial sentenced must be imposed. In The State v Senitiki Naqa & Others, a starting point of 9 months imprisonment with a resultant sentence of 6 months was considered appropriate. The circumstances surrounding the commission of the offence in that matter were different but perhaps no more serious than 100 to 200 people taking over a military checkpoint blocking the highway during a period of political turmoil and at a time when the 1^st respondent acknowledges there was no law and order in the country.

The 1^st respondent, Apisai Tora, says that he was the leader and that as traditional head of the Yavusa the others were obliged to do anything he asked them.

It is acknowledged by counsel for the respondents that there should be differential penalties for the 1^st respondent and the remaining 12 respondents. With this I agree.

The respondents are all mature adults. They knew what they were doing and many of them were and are lay preachers in their church and leaders within their respective communities. Their behaviour was most inappropriate for people in such positions. They have and had a responsibility to set an example to the community and in particular, the younger members of the community. Those with the authority to lead, have an obligation to lead in the right direction and not to encourage others to break the law.

As I said earlier, I am obliged to impose a custodial sentence for the offence that all 13 respondents have committed. In the circumstances of the case, I consider a starting point of 6 months imprisonment to be appropriate.

The 1^st respondent as the leader of his community has significantly aggravated the offence. He does however also have some very significant mitigating factors, particularly in his good and lawful service to his community and his country.

I am therefore of the opinion that taking account of the aggravation and the mitigation that an appropriate sentence with respect to the 1^st respondent is 8 months imprisonment. The remaining 12 respondents whilst being led by the 1^st respondent still had the capacity to form their own point of view and elect not to break the law. They all have significant mitigating factors in their favour. However they were all in their own right, leaders in the community, but on this occasion, regrettably, they appear to have been the sheep being led by the shepherd. I am of the opinion that a sentence of 4 months imprisonment is appropriate for each of them. In summary therefore:

1. Apisai Tora, you are sentenced to 8 months imprisonment.

2. Peniasi Sabolo, Viliame Rakuli, Paula Saukuru, Napolioni Vasu, Mosese Tuisa, Peni Raicebe, Vela Tawake, Peniasi Qoro, Ananaiasa Mocei, Apenisa Nayate, Aca Tuigaloa Saukuru and Kinisimere Vanua Qoro, you are each sentenced to 4 months imprisonment.
   

John Connors

JUDGE

At Lautoka

27 September 2005