State v Driti - Sentence [2013] FJHC 676; Criminal Case 0005.2012 (11 December 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No.005 of 2012

BETWEEN:

STATE

AND:

PITA RAGOLEA DRITI

BEFORE : THE HON. JUSTICE PAUL MADIGAN

Counsel : M. Korovou for the State
Mr. F. Vosarogo for the Accused.

Date of Mitigation: 10 December 2013
Date of Sentence: 11 December 2013

SENTENCE

1. Pita Driti you have been convicted by this Court after trial of one count of Inciting to Mutiny contrary to section of the Crimes Decree 2009. The count reads:
   

Statement of Offence

INCITING TO MUTINY contrary to section 72(1)(a) of the Crimes Decree 2009

Particulars of Offence

Pita Ragolea Driti between the 1st day of August 2010 and 31st October 2010 at Suva in the Central Division knowing that Manasa Ralawa Tagicakibau is serving in the Republic of Fiji Military Forces, attempted to seduce Manasa Ralawa Tagicakibau from his duty and allegiance to Fiji. "

2. The relevant facts of the case were that in 2010 you were the Commander Land Forces of the Fijian Army ("RFMF"). After the Commander (who was at the time, and still is, the Prime Minister) you held the most senior rank in the army over which you had virtually unfettered control, subject to the directives of the Commander himself. On divers days in September 2010 you expressed your frustration about and your dislike for the Government and in particular for the Attorney-General, Mr Aiyaz Sayed- Khaiyum ("AG") to your Junior Officer Major Manasa Tagicakibau. Your frustration manifested itself verbally in your dislike for the influence you perceived that the A.G. had on the Prime Minister to the prejudice of the Military Council of which you were a senior member. In furthering that dissatisfaction, you expressed a view to have had him removed. There being a dispute as to what words were actually used, it was nevertheless a wish expressed to the officer in such a way that you made him think that AG was to be killed. You asked the officer at least twice to use his own intelligence gathering cell to monitor the Attorney General as to his contacts, his social activities and any business dealings that he might be involved in, because you suspected that AG was indulging in corrupt practices. The Major understood that he was to find negative associations that would discredit the AG. Eventually in October of 2010 you revealed to the Major a plan that had been hatched to have the administration led by the Commander of the Military Forces dismissed by His Excellency the President and if the President were not to assent to this dismissal, to somehow have the President himself removed from Office. This plan was to be put into effect when the Commander (P.M.) was out of the country visiting troops in the Sudan and in what you presumably thought was a magnanimous gesture, you would arrange for the P.M.'s family to be sent to him in exile in the country of the P.M.'s choice. It was also said that assistance would be requested from Australian and New Zealand armed forces to secure the border and to quell any internal dissent. It is an alarming and an aggravating feature of the plan that no provision was included in it for an alternative administration to that of the Commander. By "leaning" on the Major in this way you were at least attempting, if not ordering, the Major to betray his oath of allegiance to the RFMF, and to betray his allegiance to the Government of the day. Unfortunately for you the threshold of offending by this section is only attempting and you were at the very least doing that in your meetings with the Major.
   

3. Incitement to Mutiny is a very serious offence. The role of the military, not only in Fiji, but in most countries of the world, is to maintain peace and law and order for the citizens of a country: for the protection of national security and to defend the organs of the State from any internal dissent. What you were proposing was the complete antithesis to these concepts. Public safety and public order can only be secured by loyal and disciplined armed forces and that in itself can only be accomplished if members of the army obey orders and maintain loyalty. Any deviation from those principles is a threat to national security; it is treasonous and mutinous. Hence the the severity of this particular crime. It is not a mistake that it is listed in the Crimes Decree as an "Offence against Public Order."

4. The penalty for this offence is a term of imprisonment for 15 years. Until February 2010 when the Penal Code was in force for this same offence, the maximum penalty was imprisonment for life and in the only previous case for the offence in Fiji, State v Takiveikata HAC 005.04. (4 March 2011), Goundar J. in fact imposed the maximum of life imprisonment.

5. Although not being entirely relevant to the charge you have been convicted of, I am reminded of this Court's sentences handed down in the conspiracy to murder case in Takiveikata and ors HAC 009.08 (5 March 2010). All 8 accused were sentenced to various terms for conspiring to murder the Prime Minister in the latter part of 2007. The maximum penalty for the offence at the time was 14 years imprisonment and the principal participants in the conspiracy were sentenced to terms of imprisonment of seven years. That conspiracy was being hatched contemporaneously with your scheme to depose the PM, however there is no evidence before me that the schemes were in any way related.

6. While that case cannot for obvious reasons serve as a sentencing precedent for this case, it has similar features which can be of assistance. First the maximum penalty is almost the same (14 years for conspiracy, 15 years for inciting to mutiny). In addition the offending in both cases was anti-Government, and involved a proposal to remove both the President and the Prime Minister and to bring in foreign forces to assist. Both offences are of course extremely serious in the contemplation of the disastrous consequences of a consummation of their plans.

7. In mitigation your counsel tells me that you are 53 years old, married with children and grandchildren. You joined the RFMF in 1984 as an officer cadet and since that time you had a prestigious career in the military receiving quick promotions and serving in both Lebanon and in the Sinai. You were obviously being groomed for high status because you were sent on study courses to both Malaysia and to Australia. You ended your career as a result of these activities in 2010 with the rank of Brigadier General in the post of Land Force Commander, controlling about 80% of the Army and Navy. You were rewarded with decorations including being made an officer of the Order of Fiji.

8. You were also a senior serving member of the Military Council, a body advising the Commander as PM, both before and after the take-over in December 2006 and this Court has no hesitation in accepting this entire record as a remarkable testament of your service to this country and you must receive credit for that.

9. Your Counsel tells me that you are remorseful for what occurred. That may well be the case now that you have been convicted but I saw little evidence of remorse from you during the trial.

10. Apart from the shame which this matter has obviously visited upon you, I am told that your family will suffer in that they are obviously deprived of your income and they must survive on your wife's income as a Secretary in a Bank. I am also asked to consider your co-operation with the Police in your interview under caution.

11. Mr Vosarogo urges me to consider that apart from the attempt to incite mutiny, there was no actual mutinous act and that "because of the minimal circumstance (utterance of word only) it did not cause any eventuation of military dissent ". He extends this argument by submitting that a reduction of the penalty for the offence from life imprisonment to 15 years with the introduction of the Crimes Decree in February 2010 and the possibility that it can now be an offence tried summarily means that the Legislature intends a whole new "philosophy " should appertain to the offence which should be reflected in the sentence.

12. Both Mr Vosarogo and Mr Korovou for the State refer me to the Papua New Guinea case of Ben Wafia and ors, both in the Supreme Court (SCRA 10 of 2006) and at First Instance (CR.1433, 1434,1435, and 1436 of 2002) in which sentences for this offence were discussed. It was said at First Instance and upheld in the Supreme Court that for incitement to mutiny where there was a subsequent mutiny is very serious but where in fact there was no subsequent mutiny sentences of between a few months and five years would be appropriate.

13. While a decision of the National Court of Papua New Guinea is not binding on this Court, it is nevertheless of persuasive interest. That being so I cannot accept that subsequent mutiny with the inciter and the incitee taking part is of any relevance to the crime of attempting to incite. The crime is complete when the evidence of attempt is established and whatever happens after the attempt to incite can have no bearing on the crime whatsoever. Consequently subsequent events cannot influence the sentence. What are relevant are the circumstances pertaining at the time.

14. Mr Vosarogo urges me again to pass a short sentence and then suspend it, on the basis of your clear record, your service to the nation, the potential suffering of your family and your loss of livelihood.

15. I regard this submission as being totally unrealistic. Your good service record and dedication to the State is ruled out by your seditious and anarchistic entreaties to Major Tagicakibau to do what he could to "bring down" if not eliminate the Attorney General from the executive branch. Even your Personal Service Officer who knew you well said that in the few months when he had resumed service with you in the middle of 2010, you were a changed man and made "dissatisfied" remarks whenever you heard the Attorney-General on the Radio. As is the case with any convict being sentenced his or her family circumstances can only be of relevance in truly exceptional cases. Family and social ties are the inevitable casualty of crime.

16. As referred to earlier, it a seriously aggravating feature of this case that nothing was proposed to replace the administration that you sought to destroy. As was the situation in the conspiracy to murder case (Takiveikata (supra)) no consideration was given to the absolutely dire consequences to the citizens of Fiji should the plan succeed. To suddenly overthrow a government and perhaps even remove the President from office would immediately plunge the country into a state of chaos and lawlessness with the potential of a struggle for power between perhaps you, your fellow conspirators and former agents of the SDL political party which the evidence suggests you were appearing to favour.

17. It is also aggravating that you should use your respective roles of superior/subordinate when attempting to induce the Major to betray his Commission. Irrespective of any merit in your proposal that you might have been able to persuade him with, your great power and status within the RFMF would have certainly have had a dominating manipulative effect on him.

18. It was rather unpleasant at the very least for you in your evidence in defence, to tell the Court that the Major was not particularly competent in his duties. Despite that perception on your part, if indeed it was your perception, you had no hesitation in trusting him with your seditious utterances nor were you reluctant to reveal to him the" plan" and suggest ways that he might be able to help you and your co- conspirators to further that "plan". This was especially aggravating given the evidence that the Major had come to you originally to express professional feelings of inefficacy in that he was dissatisfied with the allocation of tasks allotted to him within his role as head of the Logistical Supplies Unit ("LSU").

19. It is irrelevant that the plan did not achieve its objective or even that it was practically unachievable. As with conspiracy, the crime is committed when it is initially broached; agreement for conspiracy and attempt to incite for the instant case.

The Sentence

20. It is a matter of surprise and sadness that at your age and with your illustrious career behind you that you should come to be involved in this seditious undertaking. I take a starting point for this offence a term of 6 years' imprisonment. For the seriously aggravating features that I have referred to in paras 3, 16 and 17 above, I add a further four years to that term making a interim total of ten years. For your mitigation of clear criminal record and a truly commendable record of service to the nation I deduct a period of five years meaning that you will serve a term of imprisonment of five years. I am not able in law to suspend a sentence of that term and in any event it would not be appropriate to suspend a sentence for such a serious and potentially destructive crime. You will serve four years of that sentence before you will be eligible for parole.

P.K. Madigan
Judge

At Suva '
11 December, 2013.