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Public Prosecutor v Noal [2005] VUSC 102; CRC 048 2005 (17 August 2005)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

CRIMINAL CASE No. 48 of 2005

PUBLIC PROSECUTOR

-v-

FREDDY NOAL
JACK TOM NALAU
NELSON JOB

Mr Lent Tevi for the Public Prosecutor
Mr. Bartels for the Defendants

SENTENCE

This is the sentence of the following named Defendants: Freddy Noal, Jack Nalau and Nelson Job. The three Defendants were charged with the offences of Unlawful Entry, contrary to section 143 of the Penal Code Act [CAP. 135], Theft contrary to section 125(a) of the Penal Code Act [CAP. 135] and Malicious Damage to Property, contrary to Section 133 of the Penal Code Act [CAP. 135].

They each pleaded guilty as charged.

The brief facts are as follows: On the night of 29 May 2005, there were a break-in and theft at the World Vision building at Nambatu Area, Port-Vila. The General Manager of World Vision reported the break-in and the theft to the police on the next day of 30 May 2005. The police then successfully carried out their investigation by identifying the three Defendants.

On the night of 29 May 2005, the three Defendants left their respective homes at Ohlen Nambaga area at Port-Vila and walked to Nambatu area. They intended to enter into World Vision and stole some materials/equipments there.

They broke a window close to a door by forcing an iron bar open and they then opened the door and they all went inside. They stole the following items:-

1. 1 lap top
2. 1 keyboard
3. 1 mouse
4. Electric cords
5. 2 power boards
6. 1 speaker
7. A packet of compact discs
8. An empty cash box
9. Some packet of biscuits and
10. Chocolate.
    

After the break-in and Theft, they went back to their home at Ohlen Nambaga area.

During police investigation, they have recovered all the items except the biscuits and chocolate as the Defendants ate them.

The Court was informed that Freddy Noal was 16 years of age at the time of offending. He turned 17 years on 5 August 2005. He sometimes helps his father by driving his taxi. On 29 May 2005, he was in the company of the two (2) older Defendants. One of the eldest of the two (2) Defendants (Jack Nalau) needed money to return to his Island (Tanna) as he had only been recently released from the prison house. They broke in the World Vision by damaging a window and door lock of those premises and stole the items referred to earlier.

He has no previous convictions nor court appearance for any prior wrong doing. He pleaded guilty and was remorseful. It was said the actions of the Defendants were motivated by the apparent real need for money for the older Defendant and a feeling of wanting to help this man in that way.

It was finally said the Defendant demonstrated a real lack of judgment and understanding in deciding that he could help the other person (and no doubt himself) in this way which he knew was wrong and now aware of the serious punishment that the Penal Code provides for this type of offending.

Jack Nalau is 19 years of age. He is currently unemployed. He had been imprisoned for some nine months for escaping for a lawful custody in Tanna. He was then transferred and dealt with by the Courts in Vila. He did not have any money to return to his village at Isangel, Tanna. His mother is old and sick. He has a younger sister.

On 29 May 2005, he was in the company of two other Defendants. It was his need for money that constituted the background of this offence.

This Defendant is 19 years of age. He has no prior matters of theft and unlawful entry. He pleaded guilty and was remorseful for his actions. His actions were also motivated by the apparent real need for money and a desperate desire to return to his home island. This Defendant demonstrated a failure to learn the lesson of a previous sentence and acted in a way he plainly accepted was wrong. He will do his best in the future to earn and gain money honestly rather than commit these types of offences in the future.

The Defendant Nelson Job is 20 years of age. He is unemployed but was searching for employment prior to his offending. He is married and his wife was one month pregnant when he came into custody. He pleaded guilty to the offences. He was remorseful. He has no previous convictions.

It was said he has demonstrated a real lack of judgment and understanding in deciding that he could help the other person (and himself) in this fashion which he knew was wrong and is now aware of the serious punishment of that the Penal Code Act provides for this type of offending.

The law

Unlawfully entering dwelling house

Section 143(1)

“No person shall enter or be in any house, building, tent, vessel or other place within intent to commit an offence therein.

Penalty: Imprisonment for 20 years where the place is used for human habitation. Imprisonment for 10 years where the place is not used for human habitation.”

Theft

Section 124(a)

“No person shall cause loss to another by theft...

Penalty: Imprisonment for 12 years.”

Malicious Damage to Property

Section 133

“No person shall wilfully and unlawfully destroy or damage any property, which to his knowledge belongs to another.

Penalty: Imprisonment for 12 months.”

Section 36 of the Interpretation Act [CAP. 132].

Fine of VT5,000 or imprisonment of 12 months or both.

In sentencing each and all the Defendants I take into account of what the defence counsel says on your respective behalf. I take also into account the fact that you plead guilty at the first opportunity offered to you. I take finally into account of the fact that almost all the items you stole were recovered by the police save for the biscuits and chocolate.

Unlawful Entry, Theft and Malicious Damage to Property of other persons are very serious offences.

I am mindful of your young age in particular the Defendant Freddy Noal but on assessing all the circumstances of the case I find this case warranting an immediate custodial sentence.

Freddy Noal

I sentence you as follows:

• 2 years imprisonment for Unlawful Entry
• 2 years for Theft
• 5 months for Malicious Damage to Property.
  

The above sentences are to be served concurrently. This means that you are sentenced to 2 years imprisonment. I suspend your sentence of 2 years for a period of 2 years. I explain the meaning of the suspension of imprisonment of his sentence to Freddy Noal. I told him that he must not re-offend. If he re-offends before the expiry of 2 years, the suspended sentence of 2 years will be re-activated in addition to him being charged and dealt with for the new offending according to law. Freddy understands it.

Jack Nalau

I sentence you as follows:

• 2 years for Unlawful Entry
• 2 years for Theft
• 5 months for Malicious Damage to Property.
  

I consider to suspend the sentence. I decline to do so as the circumstances fo this offending does not warrant for it.

You will serve the above sentences concurrently. This means you will serve 2 years imprisonment with immediate effect (minus 2 months already spent in custody).

Nelson Job

I sentence you as follows:

• 2 years for Unlawful Entry
• 2 years for Theft
• 5 months for Malicious Damage to Property.
  

I consider suspension but I decline. The circumstances of his offending does not warrant for it.

The sentences are to be served concurrently. You will serve 2 years imprisonment with immediate effect (minus 2 months already spent in custody).

DATED at Port-Vila this 17^th day of August 2005

BY THE COURT

Vincent LUNABEK
Chief Justice