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State v Tuisorisori [2012] FJHC 1318; HAR002.2012 (7 September 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
REVISIONAL JURISDICTION

CRIMINAL REVIEW CASE NO.: HAR 002 OF 2012

BETWEEN:

STATE

AND:

MOSESE TUISORISORI
[Accused]

Counsel : Mr. S. Babitu for State
Accused in Person

Date of Hearing : 6 September, 2012
Date of Judgment: 7 September, 2012

JUDGMENT

1. In the Ba Magistrates Court on the 7th March 2012, this accused was convicted on his own plea of an offence of possession of explosives contrary to section 7 (2) of the Explosives Act Cap 189, along with an offence of being in breach of a suspended sentence order. For these offences he agreed facts and was convicted. The learned Magistrate sentenced him to $100 for the explosives offence and to three months imprisonment for the breach of suspended sentence offence.
   
2. The brief facts admitted by the accused were as follows.
   
   1. He is 30 years old and unemployed;
   2. Acting on information from security officers of Vatukoula Mines, a police officer searched the accused and found on him 20 detonators and 20 power gels;
   3. He was arrested and interviewed under caution at Tavua Police Station, where he admitted the offence. He was subsequently charged;
   4. The officials from Vatukoula confirmed that the explosives found belonged to the Mine;
   5. This offence was committed while the accused was on a suspended sentence (Tavua CF 27/11).
      
3. This review is only concerned with the explosives offence and not the suspended sentence breach.
   
4. The offence of possession of explosives carries a maximum penalty of eight hundred dollars OR a term of imprisonment not exceeding 2 years.
   
5. In the Court below the accused advanced the mitigation that he is 32, married with no children and asked for forgiveness. His wife was pregnant and he is the sole breadwinner. He submitted that he had been given the explosives by somebody to sell them.
   
6. Before this Court, he said that he had 2 children and elderly parents to care for. He claims that he had already given the explosives to an Indo-Fijian man when Police found them. They had been given to him to give to that Indo-Fijian. He would have received a commission from the man who gave them to him.
   
7. That story was never ventilated in the Court below and I don't accept it. The facts are that he was in possession and he had the intention to sell them, and therein lies the gravitas of this offence.
   
8. It is the view of this Court that despite the comparatively light maximum penalties, this is a very serious offence indeed. It is noteworthy that using explosives under the Crimes Decree attracts a penalty of 14 years. Possession of explosives has the potential to do unimaginable damage to people or buildings, and can be used to further insurrection or terrorism. To have them for sale compounds that seriousness to an inconceivable degree. The vendor probably would have no idea to what purpose the purchaser of these explosives was putting them, and to that extent free and unknown licence could then be given to seditionists and dissidents seeking to destroy the fabric of society or the institutions of government.
   
9. Research on this offence within Fiji reveals only one previous conviction for the offence in Lautoka in 2004, Paula Malo HAA 102 OF 2004, where Connors J., unfortunately not referring to the factual situation, upheld a twelve month sentence on appeal for this same offence.
   
10. Following a conviction for this offence, an immediate custodial sentence must invariably be passed in the range of 6 to 18 months. There can be no excuse for any citizen to be unlawfully in possession of explosives given the latent risk involved.
    
11. Given the number of explosive units held by this accused and given that he was selling them to somebody for unknown use, then a proper sentence for this offence would have been eighteen months imprisonment, however given his mitigation and given that this is a review when the accused had a reasonable expectation of being at liberty, I reduce that term to one of twelve months.
    
12. I quash the fine of $100 (and if paid it is to be refunded) and in its place I impose a term of imprisonment of twelve months.
    

Paul K. Madigan
Judge
At Lautoka
7th September 2012

Solicitors : Appellant in Person
Office of the Director of the Public Prosecution for the State