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Tolose v The State [2002] FJHC 191; HAA0090J.2002S (23 December 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0090 OF 2002S

Between:

TANIELA TOLOSE
Appellant

And:

THE STATE
Respondent

Hearing: 5th December 2002
Judgement: 23rd December 2002

Counsel: Appellant in Person
Mr S. Leweniqila for State

JUDGMENT

The Appellant, was convicted on his plea of guilty of the following offences:

FIRST COUNT

Statement of Offence

PERSONATION: Contrary to section 115(b) of the Penal Code, Cap. 17.

Particulars of Offence

TANIELA TOLOSE, between the 26^th day of June 2000 and 31^st day of December 2000, at Suva in the Central Division, falsely represented himself to be Private 28633 AMINIO TAKALA, and assumed to do duties of an Army Officer and received a salary of $342.87 by virtue of such employment, which was to his knowledge false.

SECOND COUNT

Statement of Offence

LARCENY: Contrary to section 259(1) and 262(2) of the Penal Code, Cap. 17.

Particulars of Offence

TANIELA TOLOSE, between 26^th day of June 2000 and 17^th day of July, 2002 at Suva in the Central Division, stole a K2 Rifle valued at $923.55, 3 Magazines valued at $10.92 and 94 x 5.56mm Ammunition valued at $33.84 to the total value of $986.31, the property of the Republic of the Fiji Military Forces.

THIRD COUNT

Statement of Offence

FOUND IN POSSESSION OF ARMS & AMMUNITION WITHOUT A LICENCE: Contrary to section 4(1) of the Arms and Ammunition Act Cap 188.

Particulars of Offence

TANIELA TOLOSE, on the 17^th day of July, 2002 at Nakasi, Nausori in the Eastern Division, was found in possession of a K2 Rifle Serial Number 542332, 3 M16 Magazines and 94 x 5.56mm Ammunition without a licence.

He was sentenced to 5 years and 6 months imprisonment. He now appeals against his sentence.

The Appellant was charged on the 23^rd of July 2002. The case was first called on that day. He requested time to consult a lawyer. A lawyer appeared on his behalf at 4pm on the same day. He then pleaded guilty. The facts, as read by the prosecutor were that after the events of May 9^th 2000 all Territorial soldiers were called by the Military Forces to assist the regular soldiers. On 26^th June 2000, the Appellant reported to the Military Forces, saying that his regimental number was 28633. He commenced his duties, and was paid for the first month. On the second month, the salaries discovered that his name did not match his regimental number. It was then disclosed that the Appellant was using the regimental number of one Private 28633 Aminio Takala. He was then Adismissed.@.

However, while he was still employed with the Military Forces, he was posted to do duties at Veuito during the political crisis. Between 26^th June and 17^th July 2000, he stole from a fellow soldier, a K2 rifle, three magazines, and 94 rounds of ammunition the property of the Military Forces. He kept these items at a relative=s home at Nakasi.

On 5^th July 2002, the police received information that the Appellant was in possession of a firearm and was going to disrupt the ACP/EU meeting in Nadi. He was interviewed but released and kept under surveillance. On 17^th July 2002 Captain Suliasi Gukimaleya of the Military Forces contacted the Appellant who voluntarily gave the firearm, magazines and ammunition to him. He was interviewed again. He admitted the offences and was brought to court.

These facts were admitted. In mitigation the Appellant=s counsel said that he was 29 years old, that he lived at Nakasi and was single with one child from a de facto relationship. He was employed as a carpenter and lived with his mother. He said that he committed the offence of personation because he was unemployed and that he had only received salary for one month. He said he stole the firearm because he did not get on well with the officer who had custody of the firearm. He said he had no intention of using it and had informed the Captain where he had kept it. He expressed remorse. He had 13 previous convictions, five of which were for the offence of robbery with violence.

The learned Magistrate said: AIt is noted from the facts that he had intended to use them to disrupt the ACP/EU meeting. May I thank the Police and the Military Intelligence for their quick actions after receiving the information. When this accused was contacted, he voluntarily surrendered the items which were all recovered. He had entered the Fiji Military Forces with dubious means and he stole the items from them. As mentioned before, he has been in and out of prison. It seems he has not learnt his lesson. He needs to be kept inside so that he could repent and rehabilitate himself.@ In fact, the prosecution never had evidence that the Appellant intended to disrupt the ACP meeting. The prosecutor merely said that the police had these suspicions. The Appellant never admitted such an intention.

The sentence was 12 months imprisonment on Count1, 3 years (consecutive to count 1) on Count 2, and 18 months (consecutive) on Count 3.

The Appellant says that the total term of 52 years imprisonment is harsh and excessive, that he had no intention of disrupting the ACP meeting, and that he took the firearm because of the way he had been dismissed from the Military Forces.

State counsel said that the prosecutor did not say that the Appellant was going to disrupt the ACP meeting and that the sentences individually, were not harsh or excessive. However counsel conceded that the total term offended the rule that concurrent sentences should be given for one criminal transaction, and said that concurrent sentences should have been imposed in this case.

I agree. The sentences imposed individually, were not wrong in principle, although 3 years imprisonment was on the higher end of the tariff for a second conviction of larceny. However the sentence on count 2 does reflect the seriousness of the offence. The theft of a firearm (for whatever purpose) at the height of a political crisis when there was already much fear and instability in Fiji, was a very serious matter. It called for a deterrent sentence. Further, although, the learned Magistrate erroneously took into account the alleged planned disruption of the ACP meeting, the 3 year sentence would have been justified even without such an assumption.

However, the total of 52 years imprisonment was wrong in totality. Although Count 1 was a separate offence, it enabled the Appellant to commit the offences on Counts 2 and 3, and all counts are therefore closely linked. A concurrent sentence would satisfy the need to pass a deterrent sentence, and the totality principle.

In the circumstances I order that all sentences are to be served concurrently. The Appellant will serve a total of 3 years imprisonment to run from the 23^rd of July 2002.

Nazhat Shameem
JUDGE

At Suva
23^rd December 2002