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Public Prosecutor v Swanson [1997] VUSC 48; Criminal Case No 007 of 1996 (5 December 1997)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CRIMINAL JURISDICTION

CRIMINAL CASE No. 7 OF 1996

PER">PUBLIC PROSECUTOR

v

PETER HAROLD SWANSON

Coram: Hon. Mr Justincent Lunabek J, Acting Chief Justice

Counsel: sel: J. Baxter Wright for Public Prosecutor
R. Sugden for the Defendants
J. Ozols for Miss Mathi Swanson

(on the issue of Bail bond money of VT 10.000.000 paid in Court)

SENTENCE

This case has been the largest criminal investigation conducted by the Vanuatu Police and the most complex fraud prosecution in the history of the Republic of Vanuatu.

It is plain from the evidence that you, Peter Harold Swanson, you are one of the men behind this fraudulent scheme with the assistance of your overseas Associates.

The evidence of Ngwele is that you are the link between Vanuatu and the traders or other people who were involved outside of Vanuatu. Ngwele said Swanson will be acting for and on behalf of Vanuatu.

Further the overall picture painted by the whole evidence with your own writings and signatures in the documents disclosed the strongest possible dishonesty, arrogance and irresponsibility in respect to the laws of this State Republic.

This is a well planned and organised fraud enterprise. It was on the point to succeed for the Accused and Associates. But likely for this young Republic, the fraudulent scheme was discovered and stopped, otherwise it run the risk of putting the Country into Bankrupt or in other words, the whole Nation will be financially ruined.

I have considered with care Mr Sugden’s submissions on behalf of the defendant. I take very much into consideration that the Accused is a man of good character and he has no previous convictions.

But I cannot help but think that the evidence in this case against him was compelling in respect to each of the 7 counts that he was convicted of.

I am told that Swanson did that to assist Vanuatu and he spent lots of his own money to travel for this scheme. I do not accept that. I am told Mr Swanson is 45 years. He is married, has 2 daughters and a son. One of his daughter is at the University, the other will be at the University next year.

I am told he has a number of health problems. His family sent his medications from Australia to Vanuatu.

I am told he has a large extended family who gave him support.

I am told the Accused has special interest in financial matters, established a number of companies from different areas in which he has interests.

I am told his main work is consultant in financing specialist.

In 1991, the Accused become director of number of companies.

I am told the Accused survives stock crash of 1987 and property crash of 1989. In 1990, he has an accident then lost his memories, his ability to concentrate - As a result he went bankrupt - He was still a bankrupt when he met Mr Sope and Edgell.

I am told he has keen interest in the well being of Australia and become involved in Liberal Party Politics on Federal level.

He has interest in Charity and Community activities and organisations.

I am told he has incurred some financial loss - His business in Australia disappeared - but he said he has no proper accounts (no proper records). He was not able to earn an income since 1st June 1996 and had had to accept financial support from Family and friends.

I am told he was unable to leave Vanuatu since 1st June 1996 and he lives like a prisoner since that time.

It was said that the accused must have known that there is no liability which was put to Vanuatu. This is nonsense. The evidence proved quite the contrary.

I am told the Accused was asked to raise funds - He did not actually come to sell the idea to Vanuatu - But I note the accused claimed to be a consultant in financing specialist.

I am told Swanson should be punished as merely assisting, and no harm has been done to anyone and the guarantee were recovered.

I am told Swanson was merely an accomplice and none of the others have been charged. Mr Swanson is entitled to equal treatment under the law. Because he was the only one to be charged, there is disparity of sentences of the co-offenders.

The question of disparity of sentencing is not an issue here since Swanson is the only person charged and convicted on the 7 counts in the trial.

I am told Mr Swanson’s behaviour during this long trial has been exemplary. He had made no public statement about his trial - He is simply obeying.

I am told also that because no one else was prosecuted, to actually punish Mr Swanson further, would constitute actual discrimination.

I do not really see the relevance of this here since Swanson was charged and convicted of the offences he has committed and he will be sentenced for that.

I am also told that if foreigners commit crimes in Vanuatu, in concert with Ni-Vanuatu, only the Foreigners will be prosecuted in this country. This constitutes a discrimination and in this case, it was said Swanson’s prosecution is based on a discrimination.

It is not the duty of this Court to embark upon academic dissertation on what and who to prosecute. "who" to prosecute upon complained or information received is a matter for the Prosecution. The duty of this Court is to sentence the Accused who pleads guilty or convicted of the charged laid against him/her. This Court looks at the intention not the consequences.

In sentencing the Defendant, I bear all this in mind and everything that I have heard from his counsel and read in the various references that have been produced to me.

I take also into consideration the part played by the accused in setting up the fraudulent scheme with his Associates. Regard should be paid to the fact that there are no losses sustained. Delay is also a relevant feature between the end of the Accused’s involvement and arrest to conviction and sentence.

I take all that into consideration.

However, the stress and anxiety which the Accused subject to such a delay was likely to experience were of little value as mitigating factors, being the effects, not the causes of the offending.

In this trial, the Accused was convicted on seven (7) counts. The offences are very serious indeed and they establish Mr Swanson’s blatant dishonesty in this sort of enterprise. This will not be tolerated.

Since Independence in 1980, virtually all the elected politicians of Vanuatu, have desperately wished to improve the living conditions of the people of this Republic by obtaining fundings of one kind or another for schools, hospitals and other important developments.

I feel that Mr Swanson’s part in the setting up of the fraudulent scheme as he and his Associates proposed, is an essential one. The Accused took advantage of the ignorance of the Leaders of this country by using "snaking" and "sugaring" processes and/or representations in order to induce the local leaders in believing that, through the trading program they can obtain funds for their National development projects.

In real fact, the whole Republic of Vanuatu is facing the risk of being bankrupt and/or financially "ruined".

This warrants an immediate term of imprisonment.

The Accused was convicted on 7 counts resulting from the same transactions. I propose to decide the sentence which is appropriate for the defendant’s overall criminal conduct, I will pass this on the most serious offence. In this case, the most serious offence is the offence of attempted of obtaining property by false pretences, Contrary to Section 125(c) and 28 of the Penal Code Act [CAP. 135] as charged in Count 1.

The maximum penalty imposed by law is imprisonment for 12 years. I will determine the appropriate sentence on the other offences and I propose then to make the sentences on the other offences run concurrently to the appropriate sentence to be imposed on the offence as charged in Count 1.

I must then ask myself how long?

Before I proceed with the appropriate sentence to pass on the Defendant, I must address my mind on the question of costs.

The Prosecution applies for their costs in accordance with the provisions of section 98 of the Criminal Procedure Code Act [CAP. 136]

Section 98(1) of the C.P.C. Act [CAP. 136] reads:

"(i) It shall be lawful for the judicial officer to order any person convicted by him of an offence to pay to the public or private prosecutor, as the case may be, such costs as the judicial officer shall consider reasonable in addition to any other penalty imposed.

(ii) The costs awarded under subsection (1) by a Magistrate shall not exceed VT 100.000."

I accept the proposition that whilst the Act imposes a financial limit of VT 100.000 upon a Magistrate, no similar financial limit exists in relation to orders for costs in either the Supreme Court, or Court of Appeal, where the order is made by a Judge of the Supreme Court.

The prosecution total costs are estimated in a sum in excess of VT 20.000.000 which include:

• the usual costs incurred by the Public Prosecutors office;

• the costs of legal services of Clayton Utz Solicitors, who have been instructed in this case since 21 June 1996;

• the costs of instructing Senior Counsel (Dr Gregory Woods Q.C.) to appear for the Prosecution.

• the costs of bringing professional expert witnesses from overseas, (Mr John Shockey from Washington USA, Miss Lyn Kuo from England, Mr Gerard Halliday from New Zealand).

The defence argued that the award of costs should be regarded as a penalty and if it is awarded in this case, it is discriminatory to do that against the Accused.

I reject the argument that the costs should be regarded as a penalty, quite clearly this is not the meaning of Section 98(1) Criminal Procedure Code Act [CAP. 136] for the simple reason that a Court cannot impose on a defendant a double punishment for the same offence committed.

I am of opinion that in the sort of cases as this one it was proper to make orders for costs against the defendant and the trial judge can assess the costs.

Further I am also of opinion that in cases where long terms of imprisonment were imposed on the Accused, the nature of the case also makes it proper to make orders for costs against the accused.

In the present case, I am satisfied that the nature of the case, warrants that costs be awarded against the accused.

However, I must also consider and assess the means of the Accused Mr Swanson.

I am told the Accused has nothing left. He lives with the support of his family and friends.

However, the record of the Court Registry indicated that, while this Court is still considering the appropriate sentence to be imposed on the Accused, he himself has already filled his Notice of Appeal with insistent and clear indication that he needs time to instruct a Senior Counsel from outside this Jurisdiction.

The Accused was bailed out by the payment of Vatu 10.000.000 which was then paid into the Court by the Accused.

After the conviction of the Accused 11 months thereafter, the Court was told that the sum of VT 10.000.000 does not belong to the Accused Mr Swanson. It belongs to the Accused’s Aunt Miss Mathi Rose Swanson.

At a latter stage of the proceeding, during the arguments about costs, Mr Juris Ozols of Counsel informed the Court that he was instructed by Miss Mathi Rose Swanson and he tendered to the Court 2 Affidavits respectively:

(i) Affidavit of Rose Swanson sworn on 21 October 1997.

She deposed that on 26 July 1996 she arranged for the sum of ($177,644.38 - 10 Million Vatu) to the Trust Account with ANZ Bank Limited at Port Vila Vanuatu with the direction that such moneys were to be used as bail money to secure the release of her nephew Peter H. Swanson from prison.

She deposed further that the moneys are her own personal funds and are now therefore repayable to her in full.

This affidavit was made before a Justice of the peace in NSW, Australia bearing his seal.

It has to be noted that this Affidavit of Miss Mathi Rose Swanson of 21 October 1997, was not filed before the Supreme Court of Vanuatu but it was put directly before the Court. This is not an appropriate way to submit document as evidence before this Court.

(ii) Affidavit of a Michele Browin Fox of 101 Bellevue Parade Hurstville in the State of NSW, Colonial State Bank Customer Service Officer, dated 24 October 1997.

He deposed he recalled he arranged the transmission on behalf of Mathi Rose Swanson on 26 July 1996 to Robert Sugden of Hudson and Company Solicitors Account or Trust Account in Port Vila, the sum of ($117,644.38 - 10 million Vatu).

It is noted that this Affidavit was not filed before this Court and there is no seal of any Justice. This is just a piece of paper and is, thus, rejected.

The Prosecution says the Court will order the sum of VT 10.000.000 to be awarded against the Accused.

Further, it is said for the Prosecution that in July 1996, Peter Swanson swore an Affidavit, in which he stated, at paragraph 7: "I have not and do not admit the existence of the alleged bearer bonds ...".

And at paragraph 8:

"A bail bond of VT 10.000.000 is quite beyond my capacity to arrange".

The Prosecution further says that notwithstanding the Defendant’s Affidavit, shortly thereafter he paid the sum of VT 10.000.000 into the Supreme Court Registry, and was thereafter released upon bail.

The Prosecution submitted that the sum of VT 10.000.000 paid by the Defendant into Court on the occasion of his being granted bail, is available to satisfy any order for costs (and/or a fine) and should be so applied.

The Prosecution further submitted that the Defendant may seek to allege that the sum of money paid by the Defendant into Court on or about 26 July 1996, belongs not to him but to his Aunt, Mathie Rose Swanson.

The Prosecution submitted that any loan agreement that may or may not exist between the Defendant and his relatives, is of no concern to the Court. This money was paid by the Defendant into Court. At no stage during any of the applications for bail, or subsequently, until 21 October 1997, has it been suggested that this money was other than the Defendant’s on all the circumstances, the Prosecution submitted that this money is available, to be seized by the Court, and could, and should, be applied to satisfy any orders for costs or fines that the Court may see fit to make.

Assessing the irregularities of the Affidavit of Miss Mathi Rose Swanson not properly filed before this Court, especially the irregularities of the Affidavit of Michele Browin Fox, not filed before this Court, and further without any and proper seal of a Justice of the Peace, taking also into account of the inconsistency of the Accused in his Sworn Affidavit of July 1996 and the fact that at no stage during any of the applications for bail or subsequently, until 21 October 1997, has it been suggested that this money of VT 10.000.000 was other than Defendant’s and further the fact that when this Court is still considering the sentence to be imposed on the Accused, he had already planned to instruct Overseas Senior Counsel for this appeal, I am of the view that the balance of probabilities is not in favour of the Defendant.

In those circumstances, I am satisfied on balance of probabilities that VT 10.000.000 does not belong to Miss Mathi Rose Swanson - and since it is a money which was paid by the Defendant into Court and which is now available, the Court can order it to be seized and paid to the prosecution costs as costs awarded against the Defendant. I estimate the costs of the Prosecution of Vatu 10.000.000.

In this Case:-

The least sentence that I feel able to pass on the Defendant is 20 months imprisonment. I take into consideration that Mr Swanson has spent some time in jail prior to his trial as from 21st June 1996 to 1st of August 1996 which represents a total of 6 weeks. I will deduct that period of 6 weeks from the 20 months above, and I therefore make the following orders and directions:

1. Count 1: 18 months imprisonment

2. Count 4: 12 months imprisonment concurrent with the above as in Count 1.

3. Count 5: 6 months imprisonment concurrent with the above as in Count 1.

4. Count 6: 6 months imprisonment concurrent with the above as in Count 1.

5. Count 7: 6 months imprisonment concurrent with the above as in Count 1.

6. Count 9: 6 months imprisonment concurrent with the above as in Count 1.

7. Count 10: 6 months imprisonment concurrent with the above as in Count 1.

8. In addition to the above sentences, the Accused is ordered to pay VT 10.000.000 for the Prosecution Costs immediately.

9. It is ordered and directed that VT 10.000.000 paid by the Accused to the Supreme Court for his release on bail be transferred and paid to Prosecutions as Cost awarded against the accused, immediately.

10. It is further ordered that this order of the Court lie unexecuted for the period of 30 calendar days (i.e. by 4pm Monday 29 December 1997) if the Defendant, Mr Swanson files and serves a Notice of Appeal by 4pm 29 December 1997 against this order in which case the order shall lie unexecuted pending determination of such appeal.

DATED AT PORT-VILA, this 5th DAY OF DECEMBER 1997

BY THE COURT

Vincent Lunabek J.
ACTING CHIEF JUSTICE