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Public Prosecutor v Tabi [2009] VUSC 122; Criminal Appeal Case 01 of 2009 (21 September 2009)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(CRIMINAL JURISDICTION)

Criminal Appeal Case No. 01 of 2009

BETWEEN:

PUBLIC PROSECUTOR
Appellant

AND:

MICHEL TABI
COLTON TABI
TUGU BULEBAN
EPHRAIM TABI
Respondents

Mr Justice Oliver Saksak
Mrs Anita Vinabit – Clerk

Mr Gregory Takau for Appellant
Mr Christopher Tavoa for the Respondents

Date of Hearing: 21st September 2009
Date of Judgment: 21st September 2009

JUDGMENT

1. This is a State Appeal filed by the Public Prosecutor pursuant to Section 200(3) of the Criminal Procedure Code Act Cap. 136.

2. The 4 respondents were charged with one count of unlawful entry contrary to section 143 (d) of the Penal Code Act Cap 135 (the Act) and with 4 counts of theft contrary to section 125(a) of the Act.

(a) On 19th November 2008 in the Magistrate’s Court in Luganville Santo, they all pleaded "Not-Guilty" to unlawful entry and "guilty" to all the other 4 counts of theft.

(b) The State Prosecutor entered nolle prosequi in respect of the unlawful entry charge (count 1). The Court below ordered that –

"(i) Each defendant is discharged.

(ii) Each to pay prosecution costs of VT2.000.

(iii) Pay before end of November 2008."

4. The State appealed against the manifest inadequacy of sentence.

5. On 3rd February 2009, the Learned Chief Justice gave directions to the Public Prosecutor to provide 3 copies of the Appeal Book which was to have contained –

(i) the Notice and Grounds of Appeal;

(ii) the judgment appealed;

(iii) the submissions and authorities to be relied on.

All these to be done by 16th March 2009.

6. It appears those directions are and have not been complied with. This is adequate reason to dismiss the appeal. However, considering the substance of the case and the interests of the victims of the respondents’ offending, it is appropriate to do justice to the case by accepting that substance must prevail over form.

7. The appeal is therefore allowed. The Court is satisfied and it is clearly apparent that the sentence of the Court below was manifestly inadequate.

8. The charges of theft under section 125(a) of the Act is a serious offence carrying a maximum of 12 years imprisonment. There were 4 counts of theft occurring on the same night but involving several listed items which the respondents admitted being responsible for their loss through an act of theft.

9. For a Court to discharge the respondents for such serious charges could be seen by others not as a deterrence but as an encouragement to indulge in such unlawful behaviour in our communities. The Court must not be seen to endorse or condone such unlawful behaviour or actions.

10. The Courts have the power to discharge an offender without conviction under section 55 of the Act and any such discharge amounts to an acquittal.

However, this can only happen if the Court is satisfied that the charge is proved and order the payment of:

(i) costs; or

(ii) payment of damages; or

(iii) payment of compensation; or

(iv) restitution of property.

11. The respondents admitted taking a total of VT20, 000 and dividing it between themselves at VT52, 500. Despite that clear admission, the Court below did not order any compensation or restitution as it should have done.

12. The Court has heard the amounts stolen was higher but that through an agreement the respondents have agreed to repay VT400,000 of this amount they have already repaid VT210,000 and VT190,000 is still outstanding. It is submitted that each respondent is responsible for the repayment of the sum of VT57, 500 to the victim.

13. In this appeal, this Court exercises its appellate powers under section 207(2) (a) and (b) and will quash the orders of the Court below dated 19th November 2008.

14. The Court now substitutes the following new sentence after having heard further submissions from both Mr Takau and Mr Tavoa –

(i) For count 2 – All the respondents are sentenced to 4 months imprisonment suspended for 2 years from today.

(ii) Count 3 – All the respondents are sentenced to 4 months imprisonment concurrent to count 2, but also suspended for 2 years.

(iii) Count 4 – All the respondents are sentenced to 4 months imprisonment concurrent to count 2, but also suspended for 2 years; and

(iv) Count 5 – All the respondents are sentenced to 4 months concurrent to count 2, but also suspended for 2 years.

15. The condition of suspended sentence is that the respondents must not re-offend or commit any other criminal offence within a period of 2 years from today. If they do, these sentences will automatically be activated and the respondents must go to prison.

16. There will also be a compensation order. The respondents are ordered to pay compensation to the victim in the sum of VT190, 000 divided by 4. Each of the respondents will pay the sum of VT57, 500 to the victim directly. These must be paid within a period of 6 months from today. By 31st March 2010 each defendants will have already paid off VT57, 700 to the victim.

17. Further, the Court is informed that the VT8, 000 prosecution costs as ordered have not been paid. These must be paid by the respondents to the prosecutor before Thursday 24th September 2009 before the Court leaves Bwatnapni.

18. That is the substituted sentence imposed on the respondents by this Court.

19. There is a right of appeal within 14 days.

DATED at Bwatnapni, Central Pentecost this 21st day of September 2009.

BY THE COURT

OLIVER A. SAKSAK
Judge