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Public Prosecutor v Joewangeh [2013] VUSC 55; Criminal Case 48 of 2012 (5 April 2013)

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

Criminal Case No. 48/ 2012

PUBLIC PROSECUTOR

V

HENRY TONY JOEWANGEH

Hearing: 5 April 2013
Before: Justice Robert Spear
Appearances: Leon Muluntugun for the Prosecution
George Boar for the Defendant

SENTENCE

1. Henry Joewangeh, you are for sentence today on 9 separate charges of obtaining money by deception under section 130B (1) of the Penal Code Act [CAP.135]. That is a serious offence punishable by a sentence of up to 12 years' imprisonment. You pleaded guilty to those charges and you are entitled to credit for that.
   
2. This is serious offending particularly given the circumstances in which it was committed. Throughout the relevant period of the offending, you were the Chief Executive Officer of Airports Vanuatu. That is not only a senior position because you were the management head of a company that operated all the airports in Vanuatu. It was a position of very high importance to this country and it carried with it a great deal of distinction. It was a position of critical importance to this country and anyone who occupied that position could not fail to understand that it gave them significant prominence with not just the eyes of the country on them but and also eyes from overseas.
   
3. Your contract as Chief Executive Officer was to expire on 14 February 2012 and you were aware that it would not be extended. That notwithstanding, on nine separate occasions from 9 January 2011 through to 12 January 2012, you directed your finance office to pay you advances on the housing allowance that you were entitled to by your employment. However, the advances in each case were for periods that occurred after your contract was due to expire. By your pleas of guilty, you accept that that you knew that your contract would come to an end on 14 February 2012, that you would not be entitled to a housing allowance from that point but you still directed that those advances be made to you.
   
4. Your offending was blatant and it was arrogant. Given the importance of the high position that you occupied, none of your subordinate staff would have found it easy to take issue with you in respect of your demands. They would have felt obliged to comply with your demands notwithstanding that they may have had some concerns about the correctness of them. However, they would not necessarily have had detailed knowledge about your employment situation with the Airports Vanuatu and, in particular, know that your contract was definitely coming to an end on 14 February 2012. No blame, no share of the blame, for this offending can or should be be attributed to your subordinates. You were entirely responsible for obtaining this money and it was an arrogant abuse of the high position that you occupied at that time and the authority that you enjoyed.
   
5. The total amount that you illegally obtained is admitted by you at Vt 6,105,000.
   
6. I should mention that sentencing has been delayed on a number of occasions to provide you with the opportunity to make compensation. You have not done so. I am informed that you have attempted to sell your home but that it has not yet sold. Apparently Airports Vanuatu has considered the possibility of purchasing the house or taking the house by way of arrangement on account of the amount that you owed to it but nothing has come of that.
   
7. It must be said that you have had a great deal of time to raise the funds necessary to compensate Airports Vanuatu for its loss. I am not sure when you were first charged but it would obviously have been after 14 February 2012 when you relinquished your position. I note that you were committed into this court for trial on 10 May 2012 and that you first appeared in this court on 5 June 2012. This Court adjourned sentencing on a number of occasions, at your request, to give you further opportunities to raise the funds necessary to settle with Airports Vanuatu. At the time of those adjournments, the indication was given to you in very clear terms that the issue of compensation would be of critical sentencing importance.
   
8. We are now left 11 months after your arraignment and 4 months after your pleas of guilty were entered to these charges and still no payments at all have been made to compensate Airports Vanuatu. Furthermore Mr Boar confirms today that you are not in a position today to make that payment.
   
9. I have had the benefit of extensive submissions from counsel. I have also had the benefit of a pre-sentence report and a compensation report.
   
10. I note that you are a man in your early 50s who has enjoyed significant success in your work life. From a position as an air traffic controller, you have risen through the ranks at Airports Vanuatu to become eventually the Chief Executive Officer. I have received a number of references about you. They speak of your good qualities. They speak of you as a strong and upstanding member of the community. They talk of you as a person who has a lot to contribute to this country and, indeed, given your qualifications and your work experience, that cannot be denied. But equally, it must be recognised that this is corruption. This is corruption by a person in high office and that calls for the Court to place deterrence as a significant factor in the sentencing equation. Corruption when detected, particularly by persons in high office, must be dealt with firmly so that people realise that it is not worth the risk even if they cannot accept that it is wrong.
    
11. I note that you were recently appointed as a political advisor to a Minister but, of course, that position (at least as I understand it from the local paper) has since been disestablished with the recent change of Government so I am unsure of your current employment position.
    
12. The sentence that I impose upon you must recognise the seriousness of this offending. It must express society's outrage at the corrupt acts that you have committed through the misuse of your high office and it must do its best to deter others from committing this type of offending. That notwithstanding, it is still necessary to have regard to your rehabilitation, to your offer to pay compensation when you can afford it, and your pleas of guilty.
    
13. Having particular regard to the appalling misuse of your position of authority, the blatant and arrogant nature of the offending, that this occurred over a period of approximately 1 year and on 9 separate occasions and that it resulted in you obtaining Vt 6,105,000, I consider that the appropriate offending starting point here is one of imprisonment.
    
14. That starting point recognises all aggravating features relating to this offending.
    
15. Against that, and in mitigation of penalty relating to your personal circumstances, I accept that you are someone who has been a strong contributor to the community, that you have been a good member of your church and that you are highly regarded as a senior member of your community. You have let them all down. However, for those good qualities you are entitled to ask the Court to take that into account when coming to assess the sentence and I do so with a credit of 9 months against the sentence that would otherwise be imposed upon you.
    
16. The Court is required to consider compensation and you have admitted that the amount required to be repaid here is Vt 6,105,000. You are unable to pay that back at this time.. You have had plenty of opportunity to raise the funds and that is why we are in this position where a compensation order will be dependent upon enforcement action being taken against you with probably the forced sale of your family home. Be that as it may, you do have assets that could provide compensation in full and your admission as to the amount involved satisfies me that a credit of 6 months against the sentence that would otherwise be imposed upon you should be allowed. That brings me to 21 months imprisonment.
    
17. You initially pleaded not guilty to these charges at the time of your first arraignment on 7 August 2012. That indictment was reshaped slightly and you were arraigned on the amended indictment on 10 December 2012 and you pleaded guilty to the 9 charges. This was not at the first reasonable opportunity although it was to an amended indictment. With some misgivings, I will allow you full credit of a third against the sentence that would otherwise have been imposed on you.
    
18. That brings the sentencing equation to 14 months' imprisonment. However, in all these circumstances, I am prepared to conclude that at 12 months as being the appropriate response by the Court to this offending. That will be sufficient punishment for someone who is used to a somewhat privileged life.
    
19. The question then is whether the sentence of 12 months' imprisonment should be suspended. I have no doubt at all that this Court will not see you again. I have no doubt at all that you are someone who will not resort to corrupt acts again. However, what I find difficult to accept is that someone, who has made their way so well in the world, was prepared to steal from the very company that had given him such a hand-up - that has given him such a stellar career. That points to a flaw in your character which you appear to have kept hidden from friends and family.
    
20. It is not just the people in this Court or your family and friends who hear about this case that might have cause to reflect on your actions and the outcome of this criminal proceeding. I doubt that there is anyone at Airports Vanuatu who will not be interested in the outcome of this case. I mentioned earlier that deterrence is, in my view, the sentencing factor here that is of the most critical importance. People in positions of authority must understand that corruption comes with a risk of detection, punishment and public condemnation. If you are allowed to get away without an appropriate punishment, what hope is there of impressing on people in less senior positions that corruption is wrong.
    
21. I am afraid that I am not prepared to countenance a sentence of imprisonment that is suspended. That would not be an effective sentence at all particularly given the need for punishment and for the message of deterrence to be given to the community. I do not expect that you will reoffend but more importantly it is necessary for the message to go out that those in high office or positions who commit corrupt acts will be dealt with firmly by the Court and that must be the consistent message from this Court. So the sentence is not suspended.
    
22. You are sentenced to 12 months' imprisonment. You will pay compensation of Vt 6,105,000 which will probably be addressed by the civil judgment that was entered against you today.
    
23. You have 14 days to appeal this sentence if you do noto not accept it.
    

BY THE COURT