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Public Prosecutor v Kalo [2001] VUSC 26; Criminal Case No 019 of 1998 (27 March 2001)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

Criminal Jurisdiction
CRIMINAL CASE No. 19 of 1998

p

PUBLIC PROSECUTOR R

-v-

JOSEPH KALO

SENTENCETENCE

This is the sentence of the defendant, Joseph Kalo, who is convicted by this Court of 46 counts of offences, contrary to Section 32 of the Insurance Act [CAP 82]. The defendant failed to remit the entirety of the premiums totalling an amount of Vatu 22,467,040 to the Solomon Island Family Assurance Ltd (S.I.F.A.L.), the insurer, for the period 1^st January 1995 to 31 December 1996.

Section 52 of the Insurance Act sets out the maximum penalty for each count which is 6 months or 200,000 Vatu or both.

This is a classic case of insurance fraud involving a gross breach of trust by an Insurance Agent.

The defendant as an Insurance Agent, is in a position of privilege and trust and has used that trusted position to defraud the insurer of a considerable sum of 22,467,040 Vatu during a period of 2 years (January 1995 to December 1996).

The guidelines in this type of cases are as set out in the case of Barrick (1985) 81 CR. App. R 78 by the then Lord Chief Justice of England Lord Lane and adopted by the then Chief Justice of Vanuatu, His Lordship Vaudin d’Imecourt in the case of Public Prosecutor v. Keith Mala, criminal Case No.42 of 1995.

I will have no difficulty in adopting the said guidelines in this case. In the case of Public Prosecutor v. Keith Mala, Chief Justice d’Imecourt, by paraphrasing the English Court’s decision (in Re. Barrick), held:

“The type of case with which we are concerned is where a person is in a position of trust, for example, an accountant, solicitor, bank employee, manager of a company or public servant, has used that privileged and trusted position to defraud his partners or clients or employers or the general public of sizeable sums of money. He will usually, as in this case, be a person of hitherto impeccable character. It is practically certain, again as in this case, that he will never offend again and, in the nature of things, he will never again in his life be able to secure similar employment with all that that means in the shape of disgrace for himself and hardship for himself and also his family. This has been quite evident in the present case, where the defendant has shown that he has applied for one job after another and been turned down. In my view there can be no proper basis for distinguishing between cases of this kind simply on the basis of the defendant’s occupation. Professional men should expect to be punished as severely as the others, in some cases more severely.

It is, one appreciates, dangerous to generalise where the circumstances of the offender and the offence may vary so widely from case to case. In the hope that they may be helpful to sentencers generally, and may lead to a little more uniformity, I make the following suggestions.

In general a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money obtained is small. Despite the great punishment that offenders of this sort bring upon themselves, the Court should nevertheless pass a sufficiently substantial term of imprisonment to mark publicly the gravity of the offence. The sum involved is obviously not the only factor to be considered, but it may in many cases provide a useful guide. Where the amount involved cannot be described as a small but are less than 1 million Vatu or thereabouts, terms of imprisonment ranging from the very short up to about 18 months are appropriate. Cases involving sums of between 1 and 5 million will merit a term of about two to three years’ imprisonment. Where greater sums are involved, for example those over 10 million Vatu, then a term of three and a half years to four and a half years would be justified.

The terms suggested are appropriate where the case is contested. In any case where a plea of guilty is entered however the Court should give the appropriate discount. It will not usually be appropriate in cases of serious breach of trust to suspend the sentence. As already indicated, the circumstances of cases will vary almost infinitely.

The following are matters to which the Court will no doubt wish to pay regard in determining what the proper level of sentence would be:

(i) the quality and degree of trust reposed in the offender including his rank;

(ii) the period over which the fraud or the thefts have been perpetrated;

(iii) the use to which the money or property dishonestly taken was put;

(iv) the effect upon the victim;

(v) the impact of the offences on the public and public confidence;

(vi) the effect on fellow employees and partners;

(vii) the effect on the offender himself;

(viii) his own history;

(ix) those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police.”

In the present case, the defendant comes from an impeccable background and has served for many years in the Public Service of Vanuatu without a single stain of his character. This is the first time the defendant has been convicted in a criminal trial after he set up his business of Insurance Agent. The period of dishonesty was a long one, between January 1995 to December 1996, a period of two (2) years. There has been delays in bringing this matter to Court. None of the delay was caused by the defendant. I bear all that in mind. The defendant and his spouse are unemployed. The defendant has entered religion and is now a Pastor at the Presbyterian Memorial Church (P.M.C.). The defendant has children (1 studying at the University in New Zealand, another at U.S.P. and two others at primary and secondary schools in Vanuatu). There are civil proceedings which are stayed pending the outcome of the criminal trial. I am told the ANZ Bank ceased the defendant’s house at Ecole Collardeau. I bear all that also in mind.

Following the guidelines mentioned above, on a plea of not guilty on a count of failing to pay insurance premiums, contrary to Section 32 of the Insurance Act [CAP 82], the appropriate sentence is 1 month imprisonment for each count.

For all 46 counts, the total sentence should be 46 months imprisonment. The sentence should be consecutive to each and all 46 counts.

Having done so, I bear in mind that the defrauded amount of 22,467,040 Vatu is extraordinarily substantial, and the period of 2 years is quite a lengthy one. The defendant is not entitled to any discount. A suspended sentence is not appropriate in this case. Further a partly suspended sentence would not be justified. Therefore the total sentence in this case will be 46 months imprisonment starting from today. If Mr. Kalo behaves himself in prison and I have no doubt that he will, he will have a remission of 6 months’ imprisonment and will be called upon to serve only 40 months. There is no order for the restitution of the defrauded sum 22,467,040 Vatu. There is no order as to the prosecution costs.

DATED at PORT-VILA, this 27^th DAY of MARCH, 2001

BY THE COURT

LUNABEK Vincent
Chief Justice

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