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

CRIMINAL CASES Nos. 25 & 47 OF 2007

PUBLIC PROSECUTOR

v

BILL DAVID PALA
TOM PHILIMON
NOAH PHILIMON

Coram: Chief Justice Vincent Lunabek

Counsel: Mr Bernard Standish for the Public Prosecutor
Mr Peter Bartels for the Defendant, Bill David Pala
Mr John W. Timakata for the Defendants: Tom Philimon and Noah Philimon

SENTENCE

This is the sentence of the above-mentioned Defendants: Bill David Pala, Tom Philimon and Noah Philimon in the above-mentioned Criminal Cases Nos. 25 of 2007 and 47 of 2007.

The Defendant, Bill David Pala, pleaded guilty to the offences of Unlawful Entry, contrary to Sections 143(1) and Theft, contrary to Section 125(a) of the Penal Code Act [CAP.135] in both cases. The Defendants, Tom Philimon and Noah Philimon, pleaded guilty to the offence of Obtaining Property Dishonestly Obtained contrary to Section 131 of the Penal Code Act [CAP.135] also in both cases.

I proceed with the sentencing of each of the three Defendants as if there is just one criminal case file. The charges and pleas of each of the three Defendants are as referred to above. 

The brief facts are summarized in the prosecution submissions. They are not disputed by the defence. They are set out below:

Criminal Case No.47 of 2007

One night during January 2007, Bill David Pala, broke into the Department of Agriculture offices at Tagabe. While inside the offices, Mr Pala stole computer equipment including a Dell computer screen, keyboard, mouse, cables, microphone, plug, discs and hard drives. Two bush knives were also stolen in the break in. After completing the unlawful entry and theft, Mr Pala took the stolen property to the house of which Tom Philimon and Noah Philimon were staying. The two Philimon brothers accepted the stolen property, knowing it has been stolen.

The police received information about the crimes and obtained a search warrant. Most of the stolen property was recovered, however, the Dell Computer hard drive and external hard drive were not recovered.

The police spoke with each of the Defendants who admitted committing the crimes as alleged against each of them.

Criminal Case No.25 of 2007

On or about 24 February 2007, Mr Pala returned to the same Department of Agriculture offices at Tagabe, broke into those offices and stole more property. On this occasion, he stole a Nikkon Coolpix digital camera, a Canon digital camera, a widescreen computer screen, a Toshiba powerpoint projector, a Toshiba computer mouse, electrical wiring, computer hard drive, cushions and tools.

Once again, after completing the unlawful entry and theft, Mr Pala took the stolen property to the house at which Tom Philimon and Noah Philimon were staying. Once again, the two Philimon brothers accepted the stolen property, knowing it had been stolen.

Mr Pala indicated that he would plead guilty once he received legal advice. As mentioned earlier, he pleaded guilty on the first opportunity given to him once he had received that advice. He also indicated a willingness to give evidence against his co-offenders.

The two Philimon brothers indicated that they would plead guilty to receiving property dishonestly obtained. As mentioned earlier, they pleaded guilty to those offences at the first available opportunity provided to them.

None of the Defendants has any previous criminal convictions.

What follows are the personal details of each of the Defendants and the background to the offending.

Mr Bill David Pala

The Defendant Pala is aged 18. He is single. He is a Seventh Day Adventist by religion. He is currently unemployed. He is a first time offender. Mr Bartels informed the Court that Mr Pala is contrite for his offence and understands it has blemished his otherwise virginal criminal record, and his guilty plea shows his contrition.

Mr Pala entered his plea of guilty at the earliest opportunity and he was also willing to assist the prosecution in its case against his two co-accused.

Mr Bartels informs the Court that the Defendant Pala instructed him that it was not his original idea to commit the offences but came under the influence of the other co-accused in committing these offences. Mr Bartels informs also the Court that Mr Pala returned all property to the Agriculture Department and had indeed apologized to an officer of the Department. Mr Pala is willing to perform a custom settlement with the Department of Agriculture if they are also similarly willing.

Mr Pala’s level of education was to class 6 level at primary school. Whilst he has no clear aspirations as to the future, his main priority is to remain out of trouble and in particular this type of offending in the future.

Mr Noah Philimon 

The Defendant Noah Philimon is of 22 years of age. He is from Tanna. He resides permanently at Port Resolution, Tanna. He is a husband and a father of 2 years old son. He supports his family as his other brothers live in Port-Vila and New Caledonia. He has responsibilities towards taking care of his parents.

He pleaded guilty to the offence of obtaining property dishonestly obtained. Before this incident, he is a man of good character and a first time offender.

Mr Noah Philimon instructs his counsel, Mr Timakata, to inform the Court that he says sorry for what he has done. He said he had made a bad decision to participate in the offence which has caused himself and his family in Tanna, much difficulty.

He cooperated at all times with the police. He admits to receiving the stolen properties. He instructs his counsel to inform the Court that this incident will be the last time he involved himself in such an activity.

Mr Tom Philimon 

The Defendant Tom Philimon is a young boy of 17 years of age. He resides permanently at Port Resolution, Tanna. He pleaded guilty to the offence of obtaining property dishonestly obtained. Up until now he has a clear record. He instructed his counsel to inform the Court that he does not know how and why he was involved in the offence. He is very sorry for what has happened.

He is a first time offender. He is remorseful of what he has done and he cooperates fully with the police.

The offences and the offending sections

Unlawful entry is prohibited by Section 143 of the Penal Code Act [CAP.135]. The maximum penalty for the offence is imprisonment for 10 years (the building that was unlawfully entered was for offices but not used for human habitation).

Theft is prohibited by Section 125(a) of the Penal Code Act [CAP.135]. The maximum penalty for the offence is imprisonment for 12 years.

Receiving property obtained is prohibited by Section 131 of the Penal Code Act [CAP.135].

No penalty is provided in this Section creating the offence. The Court needs to look at the Interpretation Act [CAP.132]. The relevant section is 36(3) which provides that the maximum penalty for the offence is a fine of VT5,000 or imprisonment for one year, or both.

Submissions on sentencing

The prosecution submits that the offences committed are extremely serious. Unlawful entry and theft is becoming more prevalent in Vanuatu, and, in particular, in and around Port-Vila. The maximum penalties set down by Parliament indicate how serious these offences are.

Receiving property dishonestly obtained is also serious. If people did not receive stolen property, these would be less incentive for other people to unlawfully enter buildings and steal from inside them.

It is therefore, the prosecution submission that the penalties to be imposed should reflect seriousness of the offences. 

However, in this case, the prosecution concedes that the offenders are only young men with some prospect of rehabilitation. The offenders have taken the responsibility for their crimes by pleading guilty. It should be acknowledged that Mr Pala indicated a willingness to cooperate with the prosecution by giving evidence against his co-offenders. 

In the circumstances, the prosecution concedes and submits that it would be appropriate to suspend sentences of imprisonment, but, to assist with their rehabilitation, to also make a supervision order under section 58P and 58G of the Penal Code Act [CAP.135]. 

Mr Bartels, on behalf of the Defendant Pala, refers to the following cases to assist the Court in arriving at its sentence decision:

•	Reuben v. PP (2003) VUSC4; Criminal Appeal Case No.33 of 2002 (14.01.03)… where for the offences of unlawful entry and theft, the Court sentenced the Defendant by binding him over in the sum of VT10,000 for 12 months to keep the peace and be of good behaviour. 

•	PP v. Nasamal (2002) VUSC, Criminal Case No.050 of 2002 (10.12.2002)… where for the offences of Unlawful Entry and Theft, the Court sentenced the Defendants in respect of both counts to eight months imprisonment but suspended the sentence for a period of two years.

•	Enock v. Public Prosecutor (2000) VUSC8, Criminal Case No.001 of 2000 (07.03.00)… where for the offences of unlawful entry and theft the Court sentenced the Defendants Levi to four months imprisonment on each count, to be concurrent but suspended the sentence for a period of two years.

The followings are the mitigating features:
•	The Defendant is a first time offender.
•	His plea of guilty and his remorse at committing these offences.
•	The Defendant’s willingness to perform a custom settlement between the Defendant and the management of the Department of Agriculture.
•	The willingness of the Defendant to assist the prosecution in the prosecution of the two co-accused.

Mr Bartels finally submits that and urges the Court, given the circumstances that exist in this case, to extend leniency to the Defendant and to adopt the recommendation contained in the pre-sentence report dated 10 October 2007 of community service with supervision upon the Defendant Pala.

Mr Timakata, on behalf of the Defendants Tom Philimon and Noah Philimon, asks the Court to take into account of the following factors when sentencing these two Defendants:

•	They are both first time offenders.
•	They plead guilty.
•	They cooperate with the police.

Mr Timakata agrees with the prosecution submissions as to the sentencing of the Defendants, taking into account of the circumstances that exist in this case, a suspended sentence of imprisonment will be appropriate and if suspension is directed, it should be limited to one year as the maximum penalty for obtaining property dishonestly obtained is one year.

Sentencing considerations

In sentencing each of all three Defendants, I must say that I agree with the prosecution that the offences committed are extremely serious. I bear in mind that unlawful entry and theft are becoming more prevalent in Vanuatu, and, in particular in and around Port-Vila. Receiving property dishonestly obtained is also serious. It connects directly with the offence of unlawful entry and theft. If people did not receive stolen property, there should be less incentive for other people to unlawfully enter buildings and steal from inside them.

My duty as the sentencing Judge is to impose penalties that should reflect the seriousness of the offences, after taking proper account of the details of each Defendant, the circumstances of the offending, the submissions of counsel and the law and relevant authorities.

Upon consideration, it is my view that the appropriate sentence in the type of case as these two cases is 8 months imprisonment. The next question is: are the circumstances that exist in this case warrant for such a sentence to be suspended? I answer positively to the question: yes.

I consider further that the Defendants are young men with some prospects of rehabilitation. A supervision order will be made in respect to each of the Defendants in addition to the suspension of imprisonment sentence pursuant to Section 58.

These sentences are similar in both cases. I sentence each of the Defendants as follows:-

•	Bill David Pala is sentenced to 8 months imprisonment suspended for 2 years. In addition, he is ordered to a supervision for a period of 2 years. This is his sentence in both cases with a concurrent effect.

•	Tom Philimon is sentenced to 8 months imprisonment suspended for 1 year. In addition, he is ordered to a supervision for a period of 1 year. This is his sentence in both cases with a concurrent effect.

•	Noah Philimon is sentenced to 8 months imprisonment suspended for 1 year. In addition, he is ordered to a supervision for a period of 1 year. This is his sentence in both cases wit h a concurrent effect.

Each of you has 14 days to appeal. 

[The effect of suspension is explained to each of the Defendants. 

During the submissions, the Court was informed by respective counsel of the willingness of each of the Defendants to undergo the supervision where they reside.

These steps must be sorted out with the Probation Services pursuant to the relevant provisions of the Penal Code Act (as amended in 2006)].

DATED at Port-Vila this 12th day of October 2007 

BY THE COURT

Vincent LUNABEK
Chief Justice