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Public Prosecutor v Killion [2004] VUSC 17; Criminal Case 044 of 2004 (8 December 2004)

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

Criminal Case No. 44 of 2004

PUBLIC PROSECUTOR

–v-

DAVID KILLION
PAUL MANSEN
PIERRE HOCTENE
FABRICE ISAAC
EMILY STANLEY
DAVID JACOB
JACOB PETER

Coram: Justice Treston

Mrs. Tavoa for Public Prosecutor
Mr. Kausiama for Accuses

Date of Plea Hearing: 7 December 2004
Date of Sentence: 8 December 2004

SENTENCE

Mr. Killion David, Mr. Paul Mansen, Mr. Fabrice Isaac, Mr. Emile Stanley, Mr. David Jacob, Mr. Jacob Peter and Mr. Pierre Hoctene each of you is today for sentence on various charges.

Mr. Killion David you face charge of unlawful entry, a charge of theft and 1 of malicious damage that is the same for you Mr. Paul Mansen. Mr. Fabrice Isaac you face 1 charge of theft, Mr. Emile Stanley you face the 3 charges unlawful entry, theft and malicious damage. David Jacob you face the charge of theft, Jacob Peter you face the charge of theft, Mr. Pierre Hoctene you face a charge of inciting and soliciting an unlawful entry and aiding and abetting theft.

The maximum penalty for an unlawful entry charge as it was not a property of human habitation is ten years imprisonment, the maximum penalty for theft is twelve years imprisonment, the maximum penalty for malicious damage to property is a fine or imprisonment for one year.

When I consider the appropriate sentence for each of you, I take into account the harm done to the victim and to the community at large. Each of you is responsible of course and I must consider the victim's interest. There is no indication however that any of you can make the large amount reparation necessary and I will refer to that shortly. I must denounce your conduct and deter you from offending again. I must protect the community and their property from this sort of offending. I have to consider whether or not this offending is grave on the scale of things and it is relatively grave because of the large amount of money that I will refer to shortly. I bear in mind the maximum sentence that I have referred to and I must try be consistent with of all of you.

Clearly the victim has suffered considerable loss because the facts of the case as shown in the summary indicate that there was in excess of ten million vatu in cash, and property worth approximately one million taken. Less than a million vatu worth of cash has been returned and although some property has been given back there is still outstanding items so, on the scale of things, this is serious offending and all of you planned and carried out this unlawful entry and theft. The details of what each of you has done is set out in the summary and I note that anyone who aids counsels or procures an offence can be charge and convicted as a principal offender.(See s.30 Penal Code [CAP. 135])

For the Prosecution Mrs. Tavoa submits that a sentence of eight years imprisonment would be appropriate. Your lawyer submits that while imprisonment is probably appropriate the level should be in the vicinity of two to three years and suspended.

I must examine the offending in the light of aggravating and mitigating factors. Among the aggravating features there are these:-

- this was an unlawful entry of premises
- damage was caused in the entry and removal and taking away of the safe
- there was a significant loss to the victim of money and property
- there was a significant amount of premeditation and planning
- some of you have previous convictions that I will refer to shortly

By way of mitigation, I take into account your various ages but of course the youngest of you is 21 years of age and I note that the ages range up to one of you who is 54 years. Of course I give each one of you credit for your plea of guilty to all of these charges. I also note that you generally express remorse and some of you have no previous convictions.

So I balance the aggravating features against the mitigating ones and the aggravating features clearly in this case outweigh the mitigating features and it is for that reason as much as anything else that the nature of the crime and your individual characters preclude a suspended sentence.

I look at each of your circumstances individually

Mr. David Killion, you are 21 years of age and single and have one previous conviction for theft only this year. You returned various property as outlined in the submissions, you pleaded guilty and express remorse.

Mr. Paul Mansen, you are 22 years of age and single and also have one previous conviction for theft. You returned some money and cigarettes together with foreign currency bills.

Mr. Fabrice Isaac, you are 21 years of age and single, you are remorseful and you pleaded guilty and you apologise to the Court. You say you returned all the moneys which you have had as your share as well as foreign currency bills.

Mr. Emile Stanley, at 21 years of age you are married with two young children. You are a first time offender and you pleaded guilty and say you are remorseful. You returned some money having spent some and you also returned foreign currency bills and bullets together with a valuable ring.

Mr. David Jacob, at 21 years of age you are single and you are a first time offender. You have apologised and pleaded guilty, you have returned items although you used one packet of cigarettes.

As the oldest among the offenders, Mr. Jacob Peter, you are 54 years of age and married with six children. You are remorseful and have apologised to the Court and have given back VT38, 000 which was your share.

Mr. Pierre Hochtene at 32 years of age, you are in a de-facto relationship with one child. You have previous convictions for assault, intentional assault x 2 and being drunk and disorderly. You returned some of the money that you say you got and you used the rest to purchase alcohol.

I do not think you are all honest with the Court because there is a very large amount of money which is outstanding and where that has gone is a matter of conjecture. That is a significant aggravating feature against all of you. I am of the view that you must all be dealt with in a similar fashion even though some of you may have been involved to a lesser extent than others. I say that because this is clearly a well planned and predetermined course of action in which you were all involved in one way or another and you shared equally in the proceeds. The Court must give you credit where credit is due of course but because of the premeditation and the large amount of property involved, it is my view that the starting point for the sentences should be six years imprisonment on the unlawful entry and theft charges. Those sentences can clearly be reduced by one third for your pleas of guilty leaving a sentence of four year for those particular offences. Those you of you who were involved in the damage where the maximum sentence is twelve months imprisonment face a starting point for that of six months imprisonment reduced by one third to four months.

Some of you who face three charges namely Mr. Killion, Mr. Mansen, Mr. Stanley have two sentences of four years imprisonment imposed one for unlawful entry and one for theft and they will be joined together with the sentence of four months imprisonment for the damage. I direct that all sentences be served concurrently that is together. The differences between you and various other accused is really met by the imposition of penalties on each of the offences.

In summary, Mr. Killion you are sentence to four years imprisonment for unlawful entry, four years imprisonment for theft and four months imprisonment for intentional damage. Mr. Paul Mansen you are likewise sentence in the same way, four year, four years and four months. Mr. Isaac you are sentenced to four years imprisonment for the theft. Mr. Stanley you are sentence to four years for unlawful entry, four years for theft and four months for malicious damage, those sentences are to be served together. Mr. David Jacob and Mr. Jacob Peter each of you is sentence to four years imprisonment for the theft and Mr. Pierre Hoctene you are sentence to four years imprisonment for inciting and for aiding that is two terms of four years to be served together. Each of you has been in custody for two months. From the four years imprisonment imposed on each of you, I deduct that two months so as from today I sentence you all to three years and ten months imprisonment.

The law provides that you have fourteen days to appeal those sentences if you are not happy with them.

Warrants will be prepared and you will be returned to custody to serve your sentences.

I am grateful to counsel for your helpful submissions.

Dated AT PORT VILA, this 08^th day of December 2004

BY THE COURT

P. I. TRESTON
Judge