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Public Prosecutor v Issachar [2003] VUCA 17; Criminal Appeal Case 05 of 2003 (7 November 2003)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

CRIMINAL APPEAL CASE No. 05 of 2003

IN THE MATTER OF: An Appeal from the Supreme Court of Vanuatu
sitting at Port-Vila

BETWEEN:

THE PUBLIC PROSECUTOR
Appellant

AND:

HOLLINGSON ISSACHAR
Respondent

Coram: Hon. Justice B. Robertson
Hon. Justice J. von Doussa
Hon. Justice D. Fatiaki
Hon. Justice P. Treston
Hon. Justice O. Saksak

Counsels: Mr. Macintosh for the Appellant
Mr. Bartels for the Respondent

Date of hearing: 3rd November, 2003
Date of judgment: 7th November 2003

JUDGMENT

This is a State appeal made by the Public Prosecutor pursuant to Section 200 of the Criminal Procedure Code Act [CAP. 136] Subsection 4 provides:

“The Public Prosecutor may appeal to the Court of Appeal on a point of law against any judgment of the Supreme Court exercising original jurisdiction”.

The appeal is not on the basis that the sentence imposed was manifestly inadequate, rather that the sentence imposed was contrary to law. There appears to be no challenge to the jurisdiction of this Court. When problems in the initial sentencing became apparent all agreed on how to proceed.

The Public Prosecutor sought leave to appeal out of time. Again there appears to be no challenge to the application and leave was accordingly granted.

The history of the matter is that in Criminal Proceedings No. 1 of 2001 the respondent was charged with Misappropriation under Section 125(b) of the Penal Code Act [CAP. 135], an offence carrying a maximum penalty of 12 years imprisonment. The respondent pleaded “not guilty” and a trial was conducted. The Court found the respondent guilty, convicted him and sentenced him on 11^th February 2002 as follows:

“1. The defendant (respondent) is convicted and sentenced to 2 years imprisonment.

2. The two years imprisonment shall not be executed for a period of three months on the following conditions-
   

(a) That the defendant shall repay the amount VT511,846 to the South Pentecost Community through Emile Boule within 3 months from today. If the defendant does not pay the total amount of Vt511,846 plus costs that to be ordered, he shall serve his two years imprisonment;

(b) If the defendant pay VT511,846 plus costs that to be ordered, then the defendant’s sentence of two years be suspended for two years on condition that the defendant within the period of two years shall not be convicted of any offence. If he does, then he shall serve his two years imprisonment. If he does not then he shall be discharged upon these Orders.

3. Upon hearing counsels on costs, I hereby order that the defendant shall pay costs of VT61,200 to the Public Prosecutor within 3 months from today.”
   

It is contended by the Appellant that in first suspending the respondent’s sentence for a period of three months and further suspending the same sentence for a period of two years subject to the payment of compensation and costs, amounted to a double suspension. It is submitted by counsel that such a sentence is contrary to the provisions of the Suspension of Sentence Act [CAP. 67]. Section 1 of the Act reads-

“The execution of any sentence imposed for an offence against any Act, regulation, rule or order may, by decision of the Court having jurisdiction in the matter, be suspended subject to the following conditions-

(a) when the court which has convicted a person of an offence considers that, in view of the circumstances and in particular the nature of the crime and the character of the offender, it is not appropriate to make him suffer a penalty it may in its discretion order the suspension of the execution of any sentence it has imposed upon him, on the condition that the person sentenced commits no further offence against any Act, regulation, rule or order within a period which shall be fixed by the Court, not exceeding 3 years;

(b) if, at the end of such period, the person the execution of whose sentence has been suspended in accordance with this section shall not have been convicted of an further offence against any Act, regulation, rule or order, the sentence shall be deemed to be annulled;

(c) If, before the end of such period, the person the execution of whose sentence has been suspended in accordance with this section is further convicted of any offence against any Act, regulation, rule or order, the original sentence shall be immediately executed, in no case concurrently with any subsequent sentence;

(d) the court shall, when ordering the suspension if the execution of the sentence, explain clearly to the person sentenced the nature of the and shall ascertain that he has understood its meaning.”

The appellant seeks an order from this Court declaring that the sentence imposed by the sentencing Court was not in accordance with lawful sentencing procedures. Further the appellant seeks that this Court re-sentence the respondent pursuant to its powers under section 48 of the Judicial Services and Courts Act No. 54 of 2000.

It is noted that of the sum of VT511,486 ordered by the sentencing court to be paid, there is a balance of VT406,486 outstanding against the respondent.

It is finally submitted by the appellant that an appropriate sentence which the sentencing Judge could have imposed would have been one of a bond of good behaviour for two years pursuant to section 42(1) of the Penal Code Act with a further condition of payments of monthly instalments of VT50,000 made to the South Pentecost Community through Emile Boule.

In his submissions counsel for the respondent conceded to the appellant’s submission that the sentencing Judge had erred in suspending the respondent’s sentence twice and accepted the contention that there was a defect in the sentence. As such, this ground of appeal is therefore no longer in issue.

The respondent submitted however that the appropriate manner of addressing the error was to correct the sentence imposed and not to impose one in substitution of it. Mr Macintosh urged us to consider imposing a custodial sentence on the respondent as full restitution has still not been made and since he was acting in a position of trust. In the alternative that the respondent’s sentence be deferred with restitution to be made by monthly instalments of VT50,000 to the Registrar.

Mr. Bartels stated the respondent’s unemployment status and financial standing to the Court showing that the respondent has no employment and no money to comply with a restitution order as proposed by Mr. Macintosh.

It is conceded by the respondent that the Court has power to substitute its own judgment. Section 48(3)(d) of the Judicial Service and the Courts Act No. 54 of 2000 clearly provides for that power. Whilst we are of the view that this is a case where the respondent should have been sent to jail, we are mindful of the fact that this is a State appeal, and that by allowing the appeal the Court is quashing the expectation that was given to the respondent by the sentencing Judge that he could not be required to serve an immediate custodial sentence. We are also mindful of the wishes of the South Pentecost Community that their money should be paid back to them by the respondent. Under those circumstances we are of the view that a deferred sentence under Section 42 of the Penal Code Act would be an appropriate way to correct this error. Section 42 states:

“(1) Any court by or before which any person is convicted of any offence, or before which any person appears for sentence, may, having regard to the circumstance, including the nature of the offence and the character of the offender to appear for sentence if called upon to do so, on such conditions as the court thinks fit.

(2) The making of an order under this section shall not limit or affect the power or the court, under any enactment applicable to the offence, to make any order for the payment of costs, damages, or compensation, or for the restitution of any property, notwithstanding that the offender is not sentenced on conviction, and the provisions of every such enactment shall apply accordingly.

(3) Any person in respect of whom an order is made under this section may be called upon to appear for sentence within any period specified by the Court in the order, being a period not exceeding 3 years from the date of the conviction, or, if no period is so specified, within 1 year from the date of the conviction.

(4) Where any person is brought up for sentence under this section, any judicial officer having jurisdiction to deal with offences of the same kind, whether or not he is a judicial officer before whom the case was heard, may, after inquiry into the circumstances of the case and the conduct of the offender of the case and the conduct of the offender since the order was made, sentence or otherwise deal with the offender for the offence in respect of which the Order was made.”

For the reasons given we hereby quash the Orders of the sentencing Judge dated 11^th February 2002 and substitute the following-

1. That the respondent’s sentence be deferred for a period of 6 months from the date of this judgment (until 7^th May 2004).
   

The following conditions shall apply-

(a) The debt outstanding must be paid by the respondent within the period provided.

(b) If the debt outstanding is not paid by the respondent within the period provided, when the Supreme Court is dealing with sentence we would expect it to impose an immediately effective sentence of imprisonment.

(c) If by that date full restitution is made, a sentence requiring him to serve an immediate period of imprisonment should not be imposed and suspension could properly be available.

DATED at Port-Vila this 7^th day of November 2003

BY THE COURT

J.B. ROBERTSON J
J. von DOUSSA J
D. FATIAKI J
P. TRESTON J
O. A. SAKSAKJ