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Public Prosecutor v Guyette [1984] VULawRp 4; [1980-1994] Van LR 144 (14 December 1984)

[1980-1994] Van LR 144

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU

Appeal Case No. 12 of 1984

BETWEEN:

PUBLIC PROSECUTOR
Appellant

AND:

WAHEA GUYETTE
Respondent

Coram: Williams J
Cazendres J

JUDGMENT

[CRIMINAL LAW - Jurisdiction and Sentencing - CONSTITUTIONAL LAW]

This is an appeal by the Public Prosecutor against an order by the learned Chief Justice in which he varied a sentence by way of review being a sentence which he had formerly confirmed following an appeal.

Wahea Guyette stayed at the Kaiviti Hotel during most of March 1983 incurring a debt of more than VT113,360 which he could not pay on leaving. In fact he gave false stories about his employment which suggested an ability to pay and he left secretly on 25.3.83 and did not return.

The proprietor knew the accused's whereabouts and obtained some payment from him and delayed in complaining to the police, no doubt hoping to get payment of the balance which was about 113,360VT. In French law such a delay has the result of preventing the debtor from being criminally prosecuted for fraud. However, there is no such provision in English Law and he was charged for obtaining credit fraudulently contrary to section 127 of the Penal Code. He appeared before a magistrate on 19 August 1983. After repeated adjournments and failure by the accused to surrender on one occasion, his trial commenced on his plea of not guilty on 3.2.84. He admitted the debt, pleaded part payment of a small portion and denied fraudulent intent. He was in our view rightly convicted on 17.2.84.

By that time the accused had paid a little of the debt. It was revealed that in September 1981 he had been convicted for false pretences and fined VT6,000.

The Senior Magistrate unfortunately decided to postpone sentence for two weeks to give Guyette an opportunity to repay the balance.

We are constrained to point out that this approach has been frequently stated to be incorrect by the English Criminal Courts. If a man who steals VT1,000,000 has wealthy relatives they could under such system save him from being punished by paying the debt. A poor man stealing VT10,000 must go to prison. The injustice of such an approach has always been deplored by English Courts.

After the 2 weeks, when Guyette again came up for sentence he still owed about VT100,000. He still tried to talk his way out of punishment but the learned senior magistrate, remarking that he had paid nothing in over a year, sentenced him to 6 months imprisonment on 2.3.84.

Guyette appealed to the Supreme Court on 16.3.84. He drafted his own grounds which simply amounted to a request to be released so that he could re-pay.

The learned Chief Justice heard the appeal on 12.10.84 and he allowed Guyette 5 days in which to pay off the debt.

On 18.10.84 he re-appeared before the Supreme Court and had not paid.

His appeal was dismissed on 18.10.84. On 31.10.84 the accused was allowed to appear before the Supreme Court when it was revealed that he had repaid VT98,000. The learned Chief Justice then reviewed his confirmation on 18.10.84 of the lower court's sentence and set aside the term of 6 months substituting therefore a fine of VT30,000 with 3 months imprisonment in default if not paid by 30.11.84.

It is against the review of his own decision by the Chief Justice that the Public Prosecutor filed this appeal on 7th November 1984, and it has come before the Court of Appeal at very short notice.

The learned Chief Justice gave reasons for his review of sentence in a judgment dated 1st November, 1984. He said, and we quote from his judgment:-

"The variation, I consider, is merely the proper exercise of the Court's inherent power to see substantial justice done when over 80% of the debt has been paid. See Art 45(i) of the Constitution which states:-
The Administration of Justice is vested in the Judiciary who are subject only to the Constitution and the law. The function of the Judiciary is to resolve proceedings according to law. If there is no rule of law applicable to a matter before it, a court shall determine the matter according to substantial justice and whenever possible in conformity with custom."

With respect to the learned Chief Justice we consider that the matter before him was the matter of Guyette's appeal which we consider was very properly dismissed. But we draw attention to what we regard as the improper deferment of passing sentence in order to give the appellant an opportunity to pay the balance of debt.

It is always fair and proper to take into account, in passing sentence, anything which an accused has done since the crime and before his trial, to try and make some amends or reparation for the wrong he has done to the victim or complainant. Such conduct usually precedes a plea of guilty and is regarded as a mitigating feature when sentence is being assessed. However, that is by no means the same as giving a wealthy accused who is convicted of fraud or stealing the opportunity of avoiding punishment by returning that which was stolen or by paying its value, and so forth. It is tantamount to buying one's way out of prison.

Having dismissed the appeal and having confirmed the sentence the Supreme Court was no longer seized of the matter. The accused was rightly condemned to pay his debt to society (not to the complainant) for the criminal offence of fraud, which is not the same thing as his civil obligation to pay his debt to the hotelier. Even after serving his sentence the accused is still obliged to pay off his debt which is not extinguished by conviction and serving his term of imprisonment.

On 31.10.84 there was no matter before the Supreme Court. There was no need for the accused to be before it. The Supreme Court had at that stage committed no error of procedure in dismissing the appeal again in the hope of finding a mode of rectifying the error and doing justice. In such a case, he, had there been an error in procedure may have been correct in relying on Article 45 of the Constitution, but we make no decision on such a hypothetical point.

There was no injustice caused to Guyette by imprisoning him under the enacted criminal law. The accused committed the crime of fraud and it was not unfair to sentence him for it. After conviction and sentence the accused endeavoured to "buy off" the sentence by paying for what he had fraudulently obtained. It would be wrong for the Supreme Court to assume the right of review to enable him to escape his justly-deserved sentence. It would not have been imposed had it not been just.

The Public Prosecutor's appeal is allowed and we set aside the order of the Court dated 31.10.84 and fine of VT30,000. The fine if paid shall be refunded.

The sentence of 6 months imposed by the Senior Magistrate and confirmed on appeal by the Supreme Court on 18.10.84 is restored. The accused is forthwith committed to prison to commence his said sentence.

Dated this 14th day of December, 1984.

JUDGE J. T. WILLIAMS
JUDGE L CAZENDRES