Home | Databases | WorldLII | Search | Feedback Supreme Court of Vanuatu

  Download original PDF

Public Prosecutor v Hapisai [2003] VUSC 122; Criminal Case No 040 of 2003 (20 October 2003)

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

Criminal Case No. 40 of 2003

PUBLIC PROSECUTOR

-v-

TITUS HAPISAI
SERGIO TAGA
FRANCESCA POUROUORO
PAUL SHEM
JEAN DANIEL

Coram: Justice Treston

Mr. Shaw for Public Prosecutor
Mr. Toa for 1^st, 2nd, 3rd, and 4^th Accused
Mr. Bani for 5^th Accused

SENTENCE

You each face different charges as far as the incident is concerned. Ms. Pourouoro you and Mr. Hapisai both face charges of Misappropriation. The maximum penalty in relation to those charges which each of the two of you face is 12 years imprisonment. The remaining three of you face a charge of receiving with a maximum potential sentence of 12 months imprisonment.

The facts are that on 16 July of this year the management of Vate Industry, an iron roofing manufacturer and distributor, lodged a complaint to the Police concerning sales by staff and misappropriation of monies received from the sale of iron roofing material. A system had been established between all of you for payment for roofing supplies whereby other purchasers made payments by way of instalments, between the months of June 2002 and June of this year 2003. Each of your roles was as follows:-

Ms. Pourouoro, you were employed as cashier and would receive instalments from customers and divide the money in a fifty-fifty split between your employer and the members of your group. This would be done on a daily basis, as the summary says. Mr. Hapisai, Mr. Taga and Mr. Daniel, you were employed as salesmen and would receive portions of the money collected by Ms. Pourouoro. Mr. Shem, you were employed as a cutter of the iron roofing and you would also receive a portion of the monies collected.

Police investigations revealed that during the period of a year about 1.12 million was misappropriated by your joint activities. Under the charge of misappropriation, that you, Ms. Pourouoro, and you Mr. Hapisai face, the total amount which you have admitted is VT350, 000 each. Mr. Taga and Mr. Shem you have each admitted receiving VT200, 000 each. Mr. Daniel you, the lowest of the offenders, were employed for approximately three months and received sporadic payments amounting to VT20, 000 in total.

Upon interviewing by the Police each of you admitted your involvement. You blamed your behaviour on the low salaries paid by your employer but of course that is never an excuse for criminal behaviour. Compensation is sought against you should that be thought to be appropriate and in line with the provisions of the legislation.

The Prosecutor has outlined certain aggravating and mitigating features some of which I will refer to later. All of you have suffered the penalty of losing your employment.

On your behalf Ms. Pourouoro, you are said to be 30 years of age, you worked at the employers for a period in between July 2001 and June 2003. You have two children who stay in Santo with relatives and go to school there. You care for your mother. Details are set of your present income from sewing at home and from some fundraising and references is made to your husband’s earning as well. You express regret and remorse and apologize to the victim and your other co-offenders. You are willing and ready to reimburse your former employer and indicate that others who have not been apprehended were also involved in similar activities. That does not of course excuse or justify your actions. I am reminded that you have no previous convictions that you pleaded guilty and that you co-operated with the police. I am asked to deal with you by way of a sentence of imprisonment but suspended so that you can make reparation. Your future plans include engaging yourself in business so you can repay the debt. You realise the shame that you actions have brought upon yourself and your family and understand the difficulties you will have getting employment in the future.

Mr. Hapisai, you are 25 years of age and married with a 6-year-old child. You have been the secretary of your community; you attend the Presbyterian Church and have some school qualifications. You also pleaded guilty. You are a first offender too and you co-operated with the police. I am reminded that you express regret and remorse and apology and that you are prepared to pay reparation at VT2, 000 per month and more once you obtain suitable employment.

Mr. Taga as a single man, you are aged 21. You come from Ambrym and were employed as an Electrician at some time in the past. You were employed, until you lost your job at the firm, from November 2002. I am told you have applied for jobs and only have a small job, which gives you some income. You also pleaded guilty and co-operated with the police and are a first offender. You have also shown up in Court on previous hearings of this matter and I am asked to treat you leniently. You express remorse and have apologized and are willing to make reparation and also you realise that this conviction will make it more difficult to obtain suitable employment.

Mr. Shem at 54 years of age, you were employed by this firm for many years working in the shed and cutting iron. You have six children to support and another one as well and are a churchgoer. You express great remorse and shame and I am told about the money that it costs you to support your family. Before your offending in this way you had never been disciplined and certainly never sacked from any employment. Because of your age you are now scared about what might happen to you in the future and to your credit consider that your greatest obligation is to pay the money back.

Mr. Daniel at 27 you are married with two quite young children, one aged two and one aged three months. Your wife has a job and is currently on maternity leave. I am advised that you now have a job with Port Vila Hardware for the past four months and I agree that you are at the lower level of involvement in this crime. You co-operated with the Police you are remorseful and apologise to those who are involved. Being the only one with a job at the moment it is seems to me a realistic assessment that you could pay restitution in a short time.

In general all five of you express your concern and say you will never offend again or be before the Courts in the future.

When I consider the appropriate sentence I must take into account and balance aggravating and mitigating features.

The aggravating features are as follows. There was a significant breach of trust where an employer and employee relationship was involved. I must take into account the significant loss caused to your employer. I must take into account that this was prolonged activity for some of you over twelve month’s period. That was clearly that case for you Ms. Pourouoro and you Mr. Hapisai. I must also take into account by way of aggravating features next that this was a systematic series of actions involving preparation, planning and premeditation.

Of course I balance against those aggravating features the mitigating ones which include (1) Your pleads of guilty (2) and this only applies to Mr. Daniel, limited involvement (3) your expressions of remorse and contrition and (4) your previous good character which applies to all of you.

Of course, I give you credit for those mitigating factors but they are largely outweighed by the aggravating ones. Because of the significant breach of trust and the prolonged of the activity I do not consider that where imprisonment is appropriate any term could be suspended. To suspend a sentence one must of course take into account the circumstances of the criminal behaviour and the nature of the crime and of course the maximum potential penalty. Although all of you express the wish to repay the monies only one of you Mr. Daniel is presently employed. It is my view that I must take into account the need for denouncing your conduct. I also need to deter you from offending again in this way, particularly those who have offended most seriously. Giving you all such credit as I can for the matters of mitigation I have referred to I consider that the appropriate sentences are these, and I have taken into account all the circumstances in arriving at these sentences.

Ms. Pourouoro and Mr. Hapisai each of you today is sentence to imprisonment for 12 months. As I indicated I will not suspend that sentence, of course in each of your cases I take into account your family commitments and responsibilities. Mr. Taga and Mr. Shem each of you today is sentences to 5 months periodic detention. In distinguishing you from your co-offenders whom I have sentence to imprisonment I take into account that the charge of receiving is much less serious than the main charge of misappropriation. Mr. Daniel you are today sentenced to make restitution of VT20, 000. That is to be paid within a period of 4 months. In default of that payment you are sentence to imprisonment for 1 month. If you pay the money within that time that will be the end of it. If you do not pay it then of course you go to jail for 1 month.

Each of you has the right to appeal against your respective sentences within 14 days.

Dated AT PORT VILA, this 20^th day of October 2003

BY THE COURT

P.I. TRESTON
Judge