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Public Prosecutor v Atuary - Sentence [2007] VUSC 93; Criminal Case 26 of 2007 (2 November 2007)

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

Criminal Case No. 26 of 2007

PUBLIC PROSECUTOR

-V-

KENNETH ATUARY

Coram: C.N. TUOHY J

Date of Hearing: 2 November 2007
Date of Decision: 2 November 2007

Counsels: Mr. Leon for Public Prosecutor
Mr. Toa for Defendants

SENTENCE

1. Kenneth Atuary you appear for sentence having been convicted after a trial on a charge of unlawful entry and a charge of theft. The facts are fully set out in the judgment that I gave on the 11 September 2007 finding you guilty. Briefly, overnight you broke into a builders shed, you stole from it a number of electrical tools, an electric saw, a jig saw, a planer, a router, a drill and a grinder. You stored these items that you stole and then you later sold them to a young man who should have known better, whom you met in town. Fortunately, you were tracked down and the stolen goods were recovered. Of course the money that you were paid for them has never been recovered, but that is the problem of the person who purchased stolen goods from you. I have no sympathy for that person.

2. You pleaded not guilty to the offence. You gave evidence denying that you did it. But you were found guilty by me. I note from the pre-sentence report that you continued to deny the offence to the Probation Officer for some time, however, on your second interview you finally admitted that you were guilty. People who plead guilty to the charge against them usually get a reduction on the sentence, often up to one third of the sentence because pleading guilty shows that they have some remorse and it also saves the State time and expense of a trial. You will not be receiving any reduction in your sentence because you did not plead guilty, you pleaded not guilty, you were found guilty and only then eventually admitted guilt. I do not think that you have any remorse for what happened.

3. The major aggravating factor that makes this worse is that you have already been convicted twice previously for burglary, unlawful entry and theft. On the second occasion you were sentenced to three months imprisonment. There is really no mitigating factor that I can see other than perhaps the fact that the goods were recovered but that was really no thanks to you. I agree with Mr. Toa that there does not however, seem to have been great planning and premeditation about this and the burglary does not involve an inhabited dwelling and fortunately the amount of goods taken was less than in some other burglaries.

4. However the people of Port Vila are becoming very upset about people like you breaking into their sheds and their houses and stealing their property. The Court needs to show people like you that you will go to prison if you commit burglary.
   
5. If you were young and a first offender then possibly community work or a suspended sentence would be appropriate. But you are not a young man particularly you are 22 you are a full adult and you have got previous convictions and in my opinion no remorse. Therefore it is necessary that you go to prison.
   
6. I understand that you do not want to be considered a criminal. That is in your hands, if you do not commit crimes people will not think you are a criminal. If you do commit crimes people will think you are a criminal. It is your choice.
   
7. I consider that an appropriate term of imprisonment is one year. But from that must be deducted under the law the time you spent in custody on remand. By my calculations you were remanded in custody on the 5 July 2007, so that you have been in prison awaiting trial and sentence for a period of three days less than four months. So therefore, the sentence that is imposed on you will be 8 months and 3 days in prison. I do not intend to suspend the sentence. I do not think there are any grounds for it.
   

Dated at Port Vila this 2nd November 2007

BY THE COURT

C.N. TUOHY
Judge