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State v Raicebe [2011] FJHC 729; HAC208.2011 (17 November 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 208 OF 2011

BETWEEN:

STATE

AND:

LESUMA BATIALIVA RAICEBE
[1st Accused]

JOVECI NAMOUMOU
[2nd Accused]

AVENAI NAVISALAKI
[3rd Accused]

Date of Hearing: 4th, 11th and 14th November, 2011
Date of Sentence: 17th November, 2011

Mr F. Lacanivalu for the State
All Accused in person

SENTENCE
[Sedition and Arson]
__________________

[1] These three accused have been charged with four counts of sedition, five counts of arson and three counts of arson of crops. The charges read as follows:

FIRST COUNT

Statement of Offence

SEDITION: Contrary to section 66(1)(iv) and section 67 (1)(a) of the Crimes Decree, No. 44 of 2009.

Particulars of Offence

LESUMA BATIALIVA RAICEBE between the 25th day of August 2011 and the 7th day of October 2011, along the Queen's Road at Sigatoka in the Western Division did an act namely writing of seditious words in public places, sign boards and bus

shelters stating as follows: "NEW GOVT SOON", "NEW FIJI GOVT SOON", "CHANGE IS COMING SOON", "PM YOUR TIME IS OVER....NEW GOVT SOON....VRF", "PRESIDENT SACK PM NOW....VRF", "RFMF REMOVE FRANK....VRF", "RFMF IS SPLITTING CHANGE SOON.....VRF", RFMF PM IS JUST USING U", "PM UR TIME IS OVER" and "WAKE UP" with a seditious intention to raise discontent or disaffection amongst the inhabitants of Fiji.

SECOND COUNT

Statement of Offence

SEDITION: Contrary to section 66(1)(iv) and section 67 (1)(a) of the Crimes Decree, No. 44 of 2009.

Particulars of Offence

LESUMA BATIALIVA RAICEBE, JOVECI MOUMOU and AVENAI NAVIASALAKI between the 25th day of August 2011 and the 7th day of October 2011, along the Queen's Road at Sigatoka in the Western Division did an act namely writing of seditious words in public places, sign boards and bus shelters stating as follows: "LIAR", "LIAR", "PM OUT", "FIJI SUPPORT CHURCH N UNION TO SAVE THE COUNTRY FROM MAD PM. PM TRAITOR", KHIYUM LIAR CHOR", "FIJI SUPPORT CHURCH AND UNIONS TO SAVE YOUR RESOURCES N FUTURE", "RFMF PM IS JUST USING YOU WAKE UP B4 ITS TOO LATE SUPPORT CHURCH N UNIONS", "FIJI SUPPORT CHURCH NOW ITS TIME TO ACT TO SAVE THE COUNTRY" with a seditious intention to raise discontent or disaffection amongst the inhabitants of Fiji.

THIRD COUNT

Statement of Offence

SEDITION: Contrary to section 66(1)(iv) and section 67 (1)(a) of the Crimes Decree, No. 44 of 2009.

Particulars of Offence

LESUMA BATIALIVA RAICEBE, JOVECI MOUMOU and AVENAI NAVIASALAKI between the 25th day of August 2011 and the 7th day of October 2011, along the Queen's Road at Nadi in the Western Division did an act namely writing of seditious word on a billboard stating as: "PM OUT" with a seditious intention to raise discontent or disaffection amongst the inhabitants of Fiji.

FOURTH COUNT

Statement of Offence

SEDITION: Contrary to section 66(1)(iv) and section 67 (1)(a) of the Crimes Decree, No. 44 of 2009.

Particulars of Offence

LESUMA BATIALIVA RAICEBE, JOVECI MOUMOU and AVENAI NAVIASALAKI between the 25th day of August 2011 and the 7th day of October 2011, along the Queen's Road at Lautoka in the Western Division did an act namely writing of seditious word on a billboard stating as: "TIME IS OVER" with a seditious intention to raise discontent or disaffection amongst the inhabitants of Fiji.

FIFTH COUNT

Statement of Offence

ARSON: Contrary to section 362(a) of the Crimes Decree, No. 44 of 2009.

Particulars of Offence

LESUMA BATIALIVA RAICEBE, JOVECI MOUMOU and AVENAI NAVIASALAKI on the 28th of August 2011 at Sigatoka in the Western Division, willfully and unlawfully set fire to the Vatudradra Community Post Bure.

SIXTH COUNT

Statement of Offence

ARSON: Contrary to Section 362 (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

LESUMA BATIALIVA RAICEBE, JOVECI MOUMOU and AVENAI NAVIASALAKI on the 28th of August 2011 at Nadi in the Western Division, willfully and unlawfully set fire to the Nawai Community Post Bure.

SEVENTH COUNT

Statement of Offence

ARSON: Contrary to Section 362 (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

LESUMA BATIALIVA RAICEBE, JOVECI MOUMOU and AVENAI NAVIASALAKI between the 6th October 2011 and 7th October 2011 at Sigatoka in the Western Division, willfully and unlawfully set fire to the bus shelter of Mango Bay Resort.

EIGHTH COUNT

Statement of Offence

ARSON: Contrary to Section 362 (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

LESUMA BATIALIVA RAICEBE, JOVECI MOUMOU and AVENAI NAVIASALAKI between the 6th October 2011 and 7th October 2011 at Sigatoka in the Western Division, willfully and unlawfully set fire to the Cocomo Beach Bure.

NINTH COUNT

Statement of Offence

ARSON: Contrary to Section 362 (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

LESUMA BATIALIVA RAICEBE, JOVECI MOUMOU and AVENAI NAVIASALAKI between the 6th October 2011 and 7th October 2011 at Sigatoka in the Western Division, willfully and unlawfully set fire to the bus shelter of Cocomo Beach Bus Shelter.

TENTH COUNT

Statement of Offence

ARSON OF CROPS: Contrary to Section 364 (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

LESUMA BATIALIVA RAICEBE, JOVECI MOUMOU and AVENAI NAVIASALAKI between the 26th of August 2011 and 28th August 2011 at Sigatoka in the Western Division, willfully and unlawfully set fire to a sugar cane field belonging to Subash Rama.

ELEVENTH COUNT

Statement of Offence

ARSON OF CROPS: Contrary to Section 364 (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

LESUMA BATIALIVA RAICEBE, JOVECI MOUMOU and AVENAI NAVIASALAKI between the 26th of August 2011 and 28th August 2011 at Sigatoka in the Western Division, willfully and unlawfully set fire to a sugar cane field belonging to Hari Nath.

TWELFTH COUNT

Statement of Offence

ARSON OF CROPS: Contrary to Section 364 (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

LESUMA BATIALIVA RAICEBE, JOVECI MOUMOU and AVENAI NAVIASALAKI between the 26th of August 2011 and 28th August 2011 at Sigatoka in the Western Division, willfully and unlawfully set fire to a sugar cane field belonging to Arvin Nath.

[2] To these charge all three accused have entered pleas of guilty and admitted a set of relevant facts. I satisfied myself that the pleas given were unequivocal. Consequent to the pleas and the admissions I convicted each accused of each charge that he faces.

[3] The facts admitted by each of the accused are reproduced here in full. The identity of persons not charged has been concealed.

Summary of Facts

(a) The first accused is one Lesuma Batialiva Raicebe ("A1"), 36 years old, a Private Investigator of Semo Village in Sigatoka. The second accused is one Joveci Namoumou ("A2"), 30 years old, a Farmer also of Semo Village in Sigatoka. The third accused is one Avenai Navisalaki ("A3"), 49 years old, a Driver, also from Semo Village in Sigatoka. All accused persons are related to one another as they are from the same village.

(b) A1 had meetings with an ex Military Lawyer of Delainavesi in Lami, Suva and another who is a foreign businessman. He was briefed by the lawyer that he would be in charge of the operation for their group namely the VITI REVOLUTION FORCE ("VRF") in the Western part of Fiji. He was also briefed and financially assisted by the two contacts.

(c) The first phase of the operations were(sic) aimed at doing writings against the Government, setting fire to Police Posts, government premises and vehicles and buildings of prominent businessmen who support the current Government. This was a first phase of a 3 phase operation with the first phase was(sic) to creation(sic) instabilities, phase two was the strike by unions and the final phase was the direct intervention by members of armed forces by those against the current Government in order to prevent the country from economic doom.

(d) After receiving those instructions to conduct some writings and other activities in order to create instability, A1 came to Sigatoka from Suva where he presently lives, and hired a car registration number CT 745 from a dealer of Cuvu in Sigatoka and then proceeded to Semo Village. A1 then went and saw A2 and A3 who are close relatives and invited them for a cruise in the car and informed them that he will call them when he is ready to leave.

Count 1: SEDITION contrary to section 66(1) (iv) and section
67(1) (a) of the Crimes Decree No. 44 of 2009.

(e) In carrying out the instructions above, A1 engaged himself in seven (7) operations with two of the operations carried out by him alone. The two operations were done between the 25th day of August 2011 and the 7th day of October 2011 along the Queen's Road at Sigatoka. A1 while driving in the vehicles registration numbers CT 745 and DP 520, did an act, namely the writing of seditious words in various public places, on sign boards and bus shelters with the words as follows:- "NEW GOVT SOON", "NEW FIJI GOVT SOON", "PRESIDENT SACK PM NOW....VRF", "RFMF REMOVE FRANK...VRF", "RFMF IS SPLITTING CHANGE SOON...VRF", "RFMF PM IS JUST USING U", "PM UR TIME IS OVER" and "WAKE UP". The words were written by A-1 by using a spray paint with the seditious intention to raise discontent or disaffection amongst the inhabitants of Fiji.

COUNT 2: SEDITION contrary to section 66 (1)(iv) and section 67 (1)(a) of the Crimes Decree No. 44 of 2009.

(f) In addition to carrying out these operations from Count 1, A-1 was also assisted and aided by A-2 and A-3. Between the 25th day of August 2011 and the 7th day of October 2011 also along the Queen's Road at Sigatoka in the Western Division A-1 did an act namely writing of seditious words on billboards, banners, and bus shelters stating as follows: "LIAR", "LIAR", "PM OUT", "FIJI SUPPORT CHURCH N UNION TO SAVE THE COUNTRY FROM MAD PM. PM TRAITOR", "KHIYUM LIAR CHOR", "FIJI SUPPORT CHURCH AND UNIONS TO SAVE YOUR RESOURCES N FUTURE", "RFMF PM IS JUST USING YOU WAKE UP B4 ITS TOO LATE SUPPORT CHURCH N UNIONS", "FIJI SUPPORT CHURCH NOW ITS TIME TO ACT TO SAVE THE COUNTRY" with a seditious intention to raise discontent or disaffection amongst the inhabitants of Fiji. However, A-1 was aided by both A-2 and A-3 whereby one would drive the vehicle while the other would shake the spray cans before A-1 alone would use it to write seditious words. In addition, both A-2 and A-3 would assist A-1 in hanging banners written with seditious words. At no time did A-2 and A-3 refused(sic) or withdrew(sic) their involvement. In addition, at no time did A-2 and A-3 took(sic) reasonable steps to prevent the commission of the offending nor alerted the authorities until they were apprehended by the Police.

COUNT 3: SEDITION contrary to section 66(1)(iv) and section
67(1)(a) of the Crimes Decree No. 44 of 2009.

(g) In carrying out these operations, A-1 with A-2 and A-3 between the 25th day of August 2011 and the 7th day of October 2011, along the Queens Road at Nadi in the Western Division did an act namely writing a seditious word on a billboard stating as "PM OUT" with a seditious intention to raise discontent or disaffection amongst the inhabitants of Fiji. Similarly, while A-1 would do the seditious writing, A-2 and A-3 would assist and aid him in driving and dropping him and later they would drive back to pick him up after A-1 had finished using spray paint to write seditious words. In assisting A-1, both A-2 and A-3 did not take reasonable steps to prevent the commission of the offending nor did they alert the Police.

COUNT 4: SEDITION contrary to section 66(1)(iv) and section
67(1)(a)of the Crimes Decree No. 44 of 2009.

(h) After carrying out the above writing (at Count 3) in Nadi, A-1, A-2 and A-3, between the 25th day of August 2011 and the 7th day of October, then proceeded towards Lautoka at Lomolomono where A-1 was dropped off to write the seditious word "TIME IS OVER" on a billboard with a seditious intention to raise discontent or disaffection amongst the inhabitants of Fiji. They were in a vehicle driven by A-3 and A-1 got off and wrote the seditious word in spray paint on a billboard with the picture of the current Prime Minister. The second accused was not involved in this offence.

COUNT 5: ARSON contrary to section 362(a) of the Crimes Decree
No. 44 of 2009.

(i) On the 28th day of August 2011, at about 10.45pm, A-1, A-2 and A-3 left Semo village in a vehicle registration number CT 745 driven by A-2. As they approached near Vatudradra Community Post, A-1 asked A-2 to stop near the mosque a few meters away. A-1 got off the car and walked to the Police Post where he sprinkled kerosene on top of the thatched Police bure and placed a lighted mosquito coil with match head taped to the coil with the entire coil tied to a stick. A-2 and A-3 would continue to drive off until they were called back by A-1. After placing the igniter, A-1 then called A-2 to pick him up. In sprinkling kerosene and placing an igniter on the thatched roof of the Police Bure, A-1 willfully and lawfully set fire to the Bure. Similarly, A-2 and A-3 assisted and aided him in committing arson by driving him and dropping him and later picking him up and again.

COUNT 6: ARSON contrary to section 362(a) of the Crimes Decree
No. 44 of 2009.

(j) On the 28th day of August 2011 between 11pm and 12 pm, A-1 after willfully and unlawfully setting fire to the Vatudradra Police Bure at Vatudradra, Sigatoka in the Western Division, A-1, A-2 and A-3 then proceeded towards Nawai Police Post in Nadi. As they drove past the Nawai Police Bure, A-1 then wanted A-2 to make a U-turn and they stopped at a junction near the Post. A-1 got off and walked towards the Nawai Police Post by taking a side road to the school play ground and from there, A-1 made his way to the compound and with a lighter willfully and unlawfully and set fire to the Nawai Police Bure. Afterwards, A-1 called A-2 and A-3 via mobile and they drove back to pick him up before making their way to Semo Village.

COUNT 7: ARSON contrary to section 362(a) of the Crimes Decree No.44 of 2009.

(k) Between the 6th of October 2011 and the 7th of October 2011, A-1, A-2 and A-3 bought 2 litre gallons of kerosene and with A-3 driving, they reached Mango Bay Resort where A-1 got off the vehicle registration number CT 745 while A-2 and A-3 drove off. At Mango Bay Resort, A-1 unlawfully and willfully set fire to the bus shelter of Mango Bay Resort by using kerosene and a burning mosquito coil. After setting fire to the shelter, A-1 then called A-2 and A-3 and then they went onto Cocomo Beach Resort. The total value of the damage is valued at $2,000.00.

COUNT 8: ARSON contrary to section 362(a) of the Crimes Decree No. 44 of 2009.

(l) Between the 6th of October 2011 and the 7th of October 2011, A-1 with A-2 and A-3 came to Cocomo Beach Resort and dropped A-1, and left again. A-1 with kerosene and matches willfully and unlawfully set fire to the Cocomo Beach Bure that resulted in damages worth $300.00.

COUNT 9: ARSON contrary to section 362(a) of the Crimes Decree No. 44 of 2009.

(m)Between the 6th October 2011 and the 7th of October 2011, A-1 after setting fire to the Cocomo Beach Bure, willfully and unlawfully set fire to the Cocomo Beach Bus Shelter which is near the Cocomo Beach Bure. A-1 had again used kerosene and matches to set the Bure alight. The estimated worth of damages were valued at $200.00. In all counts 7, 8 and 9, A-1 was assisted and aided by A-2 and A-3. Both did not terminate their involvement and did not take all reasonable steps to prevent the commission of the offence.

COUNT 10, 11 and 12: ARSON OF CROPS contrary to section 364(a) of the Crimes Decree No. 44 of 2009.

(n)Between the 26th of August 2011 and 28th of August 2011, at Sigatoka in the Western Division, A-1 willfully and unlawfully set fire to sugar cane fields belonging to Subash Rama, Hari Nath and Arvin Nath respectively. A-1 used kerosene and set the respective cane fields alight. Damages to Arvin Nath's cane field were estimated to be $3,500.00. Damages to Hari Nath's sugar cane field were valued to be $8,400.00. In all counts 10, 11 and 12, A-1 was assisted and aided by A-2 and A-3. Both did not terminate their involvement and did not take all reasonable steps to prevent the commission of the offence.

[4] Mitigation

4(a) The first accused is 39 years old, originally from Semo Village (Nadroga) but presently living in Suva with his wife who is expecting their first child in May 2012. He works as a private investigator, but was a former police officer for 13 years until he was dismissed in April 2008. He expresses great remorse and regrets his involvement with "the group of people" who took advantage of his disaffection on being dismissed from the Police Force. He initially intended to infiltrate the group as a private investigator but later became converted to their cause.

4(b) The second accused is 30 years of age, single, and is a Farmer in Semo Village looking after his sick and elderly parents. He too expresses his remorse in a written mitigation submission and wishes to stress that he "went along for the ride" without the fore-knowledge of the first accused intentions.

4(c) The third accused is 39 years old, also from Semo Village, where he is married with a very young daughter. He is a driver by profession. He also, in a written submission, expresses remorse. He submits that he was paid to be the driver on these individual sorties and because it was dark he had no idea of what the first accused was doing.

4(d) The first and third accused have previous unrelated convictions which are spent. The second accused has a clear record. All three have co-operated and pleaded guilty from the very beginning. In the Sigatoka Magistrates Court where charges were first laid, all three signaled their intention to "plead guilty all the way is of national interest". This they indeed have done.

5. Sedition is the incitement of discontent or resistance to lawful authority. It is the encouragement of one's fellow citizens to rebel against their state. It is punishable under the Crimes Decree 2009 with a maximum penalty of seven years imprisonment; and the actual "seditious intention" is defined by S.66 of the Decree as;

Section 66(i) A "seditious intention" is an intention.

(i) To bring into hatred or contempt or to excite disaffection against the Government of Fiji as by law established; or

(ii) To excite the inhabitants of Fiji to attempt to procure the alteration, otherwise than by lawful means, of any matter in Fiji, as by law established; or

(iii) To bring into hatred or contempt or to excite disaffection against the administration of justice in Fiji; or

(iv) To raise discontent or disaffection among the inhabitants of Fiji; or

(v) To promote feelings of ill will and hostility between different classes of the population of Fiji.

[6] From the facts admitted, there can be certainly seen an intention to excite disaffection against the government and in particular against the Prime Minister and also to incite the inhabitants of Fiji (who would of course be reading these "messages") to attempt to procure the alteration of the composition of the government of the State.

[7] It matters not to these charges what the nature of the Government is, be it an absolute monarchy, a dictatorship, an elected Westminster style democracy, or even a communist totalitarian regime. It is never for the judiciary to pass judgment on the nature of the executive or its objectives. These two branches of government must always keep their own counsel. The sentence on these three will be decided on the law alone as applied to the charges and facts admitted by each of the accused.

[8] Sedition is a very serious offence in that it undermines the legitimacy and authority of the Government. In inciting hatred and disaffection with the

Government a seditious person is inciting rebellion and political action, which in turn would lead to chaos and anarchy. The seditious scribbling exemplified by these charges could be differently viewed depending on the "political eyeglasses" the viewer chooses to wear. Perhaps some would and will say: it is all a bit of a laugh; perhaps some would and will say it is serious incitement to anarchy and the present fragile state of the executive cannot tolerate such insurrection.

[9] Without wanting to express a political view and not being permitted to do so by convention, this Court must take the elements of the count charged into account, and applying these to the facts arrives at the inescapable finding that the charges are serious and subversive. The first accused admits that the whole "billboard operation" was an initial phase to create instability to set the scene for two far more sinister "phases". That being so regard must be had to the sentencing principles of deterrence and retribution, as well as probably more importantly denunciation. That is to say that the sentence must make a statement that the offence in question is not to be tolerated by a mainly obedient, complaisant population.

[10] I take as a starting point for the sedition offences a term of 4 years and 6 months.

[11] Both the second and third accused plead ignorance of the offences and tell me that they were just going along at the request of the first accused sometimes as a driver, sometimes as a companion. It is difficult to believe that submission, given that these two were present in the vehicle on at least 5 different occasions when seditious writing was being sprayed on bill boards and later when buildings and crops were being set alight. Perhaps they were coerced into acting by the authority and sway of the first accused but their admissions in the facts to be shaking spray cans and driving bring them squarely within the ambit of joint offenders and they must be sentenced as such.

[12] Each of the second and third accused shall also serve a term of four years 6 months for each sedition offence he has been convicted of (ie. Counts 2, 3 and 4 for the third accused: Counts 2 and 3 for the second accused).

[13] Arson is an extremely serious offence in that the maximum penalty is life imprisonment, while the maximum for arson of crops is ten years imprisonment.

[14] Despite the serious penalty, the Courts in Fiji have set the tariff band of sentence for arson at between 2 years and 4 years imprisonment. (Lagi HAA 004/2004 per Shameem, J and Tuitokava HAA 67/2005 also Shameem, J). It is a seriously aggravating feature in this case that the accused persons set fire to police bures, buildings which having been built with tax payers monies, are used extensively in Police investigation work. The facts admitted relating to the arson of these bures show a total disregard for the fact that they be occupied or not; no checks were seemingly made for occupancy. I take as a starting point for arson of the bures a term of four years and I add one year for the aggravating feature referred to. I deduct six months for the accused's clear records making a total term of 4 years, 6 months.

[15] Each accused shall serve four years 6 months for the Police bure arsons. (Counts 5 and 6).

[16] Each accused is also convicted of arson of the bus shelters at Mango Bay Resort and at Cocomo Beach. These arsons do not carry the aggravating feature of being Police property although they are constructions for the benefit of the public. It is not revealed why these particular shelters should be destroyed but it is obviously to the disadvantage of the travelling public. I sentence each to four years for these two arson offences.

[17] The final arson charge is setting fire to the Cocomo Beach bure (Count 8). I am not told the purpose either that the bure was put to, nor of the reason

for the arson but that too will attract a sentence of four years for each accused.

[18] There are three counts of arson to crops (Counts 10, 11 and 12) for which all three accused have been convicted. Again there is no information in the facts as to the relevance of the three victims of these senseless arson offences to the "grand scheme", but the penalty being less, I sentence each accused on these 3 offences to two years imprisonment.

[19] The total sentences to be served are therefore:

First accused Counts 1, 2, 3 & 4: Four years 6 months, concurrent with each other.

Counts 5 & 6: Four years 6 months to be concurrent with each other.

Counts 7,8,9: Four years concurrent with each other.

Counts 10,11 12: Two years, concurrent with each other.

[20] This is a total term of 15 years to be served by the first accused. Standing back, the Court realizes that this is far too long a term given his co-operation and pleas of guilty. I therefore order that all terms be served concurrently, making a total term of 4 years 6 months. From that term I deduct 18 months to reflect the first accused's plea of guilty meaning that the first accused will serve a total of imprisonment of three years.

[21] The second and third accused should serve the same sentences. I am not persuaded that they are innocent dupes, but they are unsophisticated village farmers and there is no evidence that they were party to the political machinations and indoctrination of "the group". There is no evidence that they did any of the seditious writings, nor set buildings or crops alight. They will each receive a discount of eighteen months for their co-operation and guilty pleas and a further discount of twelve months for their much "lesser roles". They will serve a total term of imprisonment of two years.

[22] The first accused will serve a minimum term before being eligible for parole of two years, four months and the 2nd and 3rd accused a minimum term of 18 months.

P.K. Madigan
JUDGE

At Lautoka
17 November, 2011