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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)
Criminal Cases No: 18, 19, 20, 21, 22, 23
24 and 27 of 2012
PUBLIC PROSECUTION
VS.
KEVEN HEROMANLEY
JEAN MARK NIMBAL
Mr Justice Oliver A. Saksak
Mrs Anita Vinabit - Clerk
Mr Parkinson Wirrick for Public Prosecutor
Miss Jane Tari for the Defendants
Date of Plea: 3rd July 2012.
Date of Hearing of Submissions: 3rd August 2012.
Date of Sentence: 21st August 2012.
SENTENCE
1. The two defendants were charged jointly and severally or separately in the following cases –
(a) Criminal Case No. 18 of 2012
Kevin Heromanley was charged severally with one Count of Unlawful Entry (Count 1) Contrary to Section 143 (1) and with one Count of Theft (Count 2) Contrary to Section 125 (a) of the Penal Code Act [Cap 135] (the Act).
Facts
On 27th January 2012 at about 9.30 p.m at night the defendant entered into Esah Corporation Store on the Western end of the main street in Luganville. He gained entry from the back by climbing onto the roof and cutting the metal bars from a small window, he gained entry into the store. He stole 12 grosses of cigarettes and 8 bottles of perfumes and left. None of these items have been recovered. The premises is used both as a place of business and human habitation.
Pleas
On 3rd July 2012 the defendant pleaded guilty to the two charges and conviction was entered accordingly. He was remanded in custody to await sentence.
(b) Criminal Case No. 19 of 2012
Kevin Heromanley and Jean Mark Nimbal were charged jointly with two counts of Unlawful Entry and Theft (Counts 1 and 2) Contrary to Sections 143 (1) and 125 (a) of the Act.
Facts
On 15th January 2012 at about 5.30 p.m the defendants went into Michael Lapsai's residence at Mango Station and stole a large new generator valued at VT109,900. The victim is Kevin Heromanley's uncle. The generator was sold and never recovered.
Pleas
On 3rd July 2012 both defendants pleaded guilty to the two charges and convictions were entered accordingly. Both were remanded in custody to await sentence.
(c)Criminal Case No. 20 of 2012
Kevin Heromanley and Jean Mark Nimbal were charged jointly with two Counts of Unlawful Entry (Count 1) and Theft (Count 2) Contrary to Sections 143 (1) and 125 (a) of the Act.
Facts
On 3rd January 2012 at around 7.00 p.m both defendants entered the residence of Mrs Mary-Jane Dinh when no-one was at home. They climbed over the fence, removed louvers from a window and gained access. They stole a DVD player and assorted jewelry valued at VT1,535,700. Jean Mark Nimbal took the DVD player and Kevin Heromanley took the jewelry. Police recovered the DVD player, 2 sets of earrings, 4 necklaces and 4 earrings.
Pleas
On 3rd August 2012 both defendants pleaded guilty to the two charges and convictions were entered accordingly.
(d)Criminal Case No. 21 of 2012
Kevin Heromanley was charged alone with Unlawful Entry (Count 1) and Theft (Count 2) Contrary to Sections 143 (1) and 125 (a) of the Act.
Facts
On the night of 21st May 2012 between 6.00 pm and 11.00 pm the defendant whilst still at large after his escape from lawful custody, entered into a bungalow at the Coral Quays Resort when no-one was in. He broke open the fly screen on the bathroom window and removed louvers from a window and gained entry. He stole assorted items of jewelry, a mobile phone, an ipod deck speaker, a white silver speaker and a black rechargeable torch. The Police recovered only one gold watch, one gold bracelet and small speakers.
Pleas
On 3rd July 2012 the defendant pleaded guilty to the two charges and convictions were entered accordingly.
(e)Criminal Case No. 22 of 2012
Kevin Heromanley was charged alone with Unlawful Entry (Count 1) and Theft (Count 2) Contrary to Sections 143 (1) and 125 (a) of the Act.
Facts
On the night of 11th March 2012 at around 8.45 pm the defendant entered a guest room at the Coral Quays Resort and stole cameras and assorted photographic equipment, mobile phones, ladies bags and scandals, torch, mobile phone and memory cards, beach towels and cash at $300.00 and VT5.200. The Police recovered only a Nikon Camera, a mini tripod, a towel and a torch.
Pleas
On 3rd July 2012 the defendant pleaded guilty to the two charges and convictions were entered accordingly.
(f) Criminal Case No. 23 of 2012
Kevin Heromanley and Jean Mark Nimbal were charged jointly with Unlawful Entry (Count 1) and Theft (Count 2) Contrary to Section 143 (1) and 125 (a) of the Act.
Facts
On the night of 2 December 2011 the defendants entered into Bungalow No. 4 at the Beach Front Resort. They gained entry by cutting the fly screen and removing louvers from a window. They stole a black suitcase, a walking stick, a camera, a flash drive and clothes of the guest.
Pleas
On 3rd July 2012 the defendants pleaded guilty to the two charges and the Court entered convictions accordingly.
(g) Criminal Case No. 24 of 2012
Kevin Heromanley and Jean Mark Nimbal were charged jointly with Unlawful Entry (Count 1) and Theft (Count 2) Contrary to Sections 143 (1) and 125 (a) of the Act.
Facts
On the night of 8th February 2012 at about 8.30pm the defendants entered the Au Bon Marche Store while the owners, an elderly couple were asleep. They gained entry by using bolt-cutters to cut open a small window. They stole cash in the sum of VT600.000 and other foreign currencies. None of the moneys stolen has been recovered.
Pleas
On 3rd July 2012 the defendants pleaded guilty to the two charges and the Court entered convictions accordingly.
(h) Criminal Case No. 27 of 2012
Kevin Heromanley and Jean Mark Nimbal were charged jointly with one count of escape from lawful custody contrary to Section 84 of the Act.
Facts
In the evening of 1st May 2012 at about 7.00pm the defendants along with detainee Andre Ringiau who is still at large were let out of their cells to take fresh air. Upon their release they ran to a pile of stones, picked up the stones and threatened the Correctional Officers that they open the gate. For fear of serious bodily harm, the officers did as they were told and the defendants escaped from lawful custody. Both had been arrested and remanded in custody since 11th March 2012.
Pleas
On 3rd July 2012, the defendants pleaded guilty to the charge and convictions were entered accordingly.
2. The maximum penalties for these offences are –
(a) Unlawful Entry – Section 143 (1), imprisonment for 20 years where the place is used for human habitation.
(b) Theft - Section 125 (a), imprisonment for 12 years; and
(c) Escape – Section 84, imprisonment for 5 years. Those high penalties reflect the seriousness of these offences.
3. Defendant Jean Mark Nimal was charged also in Criminal Case No. 26 of 2012 along with Bill David where he aided Bill David to commit theft on two separate occasions on 13th and 22nd April 2012. He pleaded
guilty to being an accomplice under Section 30 in conjunction with Section 125 (a) of the Act. He was convicted and sentenced as
a principal offender to a concurrent sentence of 5 years imprisonment. As those offendings were committed in April 2012 after the
defendant had committed a series of unlawful entries and thefts beginning on 2nd December 2011, 3rd, 15th and 27th January 2012 and
8th February 2012, it has become necessary to consolidate the previous sentence of this defendant to make them concurrent with his
sentences for his offendings in these eight (8) cases. This is to ensure consistency with the principle established in Kalfau's case and to avoid a crushing effect on a young man who is still 21 years of age. It is necessary to promote in him a sense of reform
and rehabilitation so he can continue with his life upon reintegration back into the community after having served his appropriate
term of imprisonment. For those reasons, I therefore order that this defendant's sentence of 5 years imprisonment imposed for his
offendings in Criminal Case No. 26 of 2012 be hereby served concurrently with the sentences imposed for his series of offendings in these eight cases.
4. Both the Public Prosecutor and Defence Counsel referred the Court to the cases of Heromanley v. Public Prosecutor [2010] VUCA 25; Kalfau v. Public Prosecutor [1990] VUCA 9; and Public Prosecutor v. David Killion and Others [2004] VUSC 17 to submit that custodial sentences with a starting point of 6 years imprisonment be imposed with appropriate uplifts for aggravating
features, and appropriate reductions due to mitigating factors. They further submitted that the sentences imposed be served concurrently.
The Court accepts these submissions in respect to Jean Mark Nimbal. For Kevin Heromanley, the Court expresses its concerns and hesitation
to apply that case to the defendant for reasons which will be given later in this sentencing Order.
5. These offendings are in themselves serious. But other features that add to the seriousness of these offendings are –
(a) They were carefully planned and thought-out.
(b) There were significant losses of properties which cannot be recovered or made good by the defendants.
(c) The offendings were repeated by Kevin Heromanley on 7 separate occasions against 7 different victims. For Jean Mark Nimbal, on 5 separate occasions on 5 different victims.
(d) They were committed in the night and all in places used for human habitation. Commercial premises are used for human habitation during business hours as well.
(e) The offendings were committed by both defendants acting together.
(f) Kevin Heromanley has previous convictions from 2005 and 2010 both in the Magistrates Court and in this Court.
(g) Jean Mark Nimbal also has previous convictions in this Court in Criminal Case No. 26 of 2012. And he is a co-defendant in a spate of burglaries and thefts around Luganville for which he has been charged and sentenced separately in Criminal Case No. 32 of 2012.
6. The Court accepts that based on the case authorities submitted by Counsel, the starting points for both defendants will be six
years imprisonment in respect to the unlawful entry and theft charges.
7. The aggravating features listed under paragraph 5 above warrant an uplift by 3 years. A general reduction of 2 years for guilty
pleas and good cooperation with the police will be made in respect to both defendants. The rest of the mitigating factors submitted
are not relevant.
8. Having said all that, I now proceed with the Sentencing as follows :-
8.1 Kevin Heromanley
The Court sentences you as follows –
(i) For Seven Counts of Unlawful Entry, you are sentenced to 6 years imprisonment for each Count, concurrent.
There is an uplift of 3 years for the aggravating features bringing the sentence up to 9 years imprisonment.
In mitigation, there will be a general reduction of 2 years for two factors of guilty pleas and good co-operation with the Police.
In effect the total concurrent sentences for the unlawful entry charges is 7 years imprisonment.
(ii)For the Seven Counts of Theft, you are sentenced to 6 years imprisonment as the starting point for each Count, concurrent.
There is an uplift of 3 years for the aggravating features bringing the sentence up to 9 years imprisonment. In mitigation, there will be a general reduction of 2 years for two factors of guilty pleas and good co-operation with the Police.
In effect to total concurrent sentences for the Theft charges is 7 years imprisonment. I order that these be served concurrently with your 7 years concurrent sentences for the unlawful entry charges.
(iii) For the one Court of Escape from Lawful Custody, you are sentenced to 6 months imprisonment. As a separate offending, I order that this be served consecutively with your concurrent sentences of 7 years for unlawful entry and theft.
8.2 Your total overall sentence is therefore 7 years plus 6 months imprisonment consecutive, commencing from the date you were first remanded in custody, that being 3rd July 2012.
8.3 The concurrent sentences are imposed on both defendants pursuant to Section 52 (1) and (4) of the Act and the Kalfau case so as to avoid a crushing effect on them as young men in their twenties.
8.4 The case of Heromanley was your case on appeal. It was submitted by both the Prosecutions and defence counsel. However it can have little or no relevance and assistance to you. You have made a mockery of your victorious appeal in that case and abused it as an advantage to remain in the community only to commit these further serious offences, instead of using that privilege to reform and rehabilitate. You repeatedly committed the same offences for which you were charged in that case, but here it happened on 7 different occasions and all at places used for human habitation. Cash moneys exceeding VT2 million were stolen and have not been recovered and there is no hope of doing so. You and your co-defendant have caused permanent losses to your innocent victims.
8.5 The Court of Appeal was sympathetic towards you and substituted a sentence of supervision for 9 months from 16th July 2010. When you reoffended for the first time on 2nd December 2011, you were only 5 months into your 9 months supervision. For your second and third offendings on 15th and 27th January 2012, your were 6 months within your 9 months supervision. For your fourth and fifth offendings on 3rd and 8th February 2012 you were 7 months within your 9 months of supervision. For your sixth offending on 11th March 2012 you were 8 months within your 9 months supervision. Obviously something had gone terribly wrong with your supervision. However your actions were the result of your own choices and therefore it follows that you can only face the consequences of your actions, and this time, with little sympathy.
8.6 Jean Mark Nimbal
The Court sentences you as follows –
(i)For the 5 Counts of Unlawful Entry, you are sentenced to 6 years imprisonment as the starting point for each count, concurrent.
There will be an uplift by 3 years for the aggravating features bringing the total sentence up to 9 years. In mitigation, there will be a reduction of 3 years for two mitigating factors of guilty plea and good co-operation with the Police. In effect the total concurrent sentences for the unlawful entry charges is 6 years imprisonment.
(ii) For the 5 Counts of Theft, you are sentenced to 6 years imprisonment as the starting point for each count, concurrent.
There will be no uplift. And there will be no reduction as the 1/3 reduction made in relation to the unlawful entry charges adequately cover the theft charges as well. In effect the total concurrent sentences for the theft charges is 6 years imprisonment. I hereby order that these 6 years be served concurrently with your 6 years concurrent sentences for the unlawful entry charges.
(iii) For the one Count of Escape, you are sentenced to 6 months imprisonment. As a separate offence, I order that this be served consecutively with your 6 years concurrent sentences for the unlawful entry and theft charges. In effect you will serve a total imprisonment term of 6 years plus 6 months consecutive. Your sentences commenced also on 3rd July 2012. Your sentence of 6 years will be served concurrently with your sentence to be imposed in Criminal Case 32 of 2012.
9. The Court has imposed high punishments, for these offences by both defendants basically to serve the following purposes –
(a) To act as a specific and general deterrence.
(b) To mark the gravity of their offendings.
(c) To mark public disapproval of their unlawful and unwarranted actions.
(d) To protect the public and the business sector; and
(e) To punish both defendants appropriately and adequately.
10. Those are the sentences of the Court for both defendants. Both defendants have a right of appeal within 14 days if they so choose.
DATED at Luganville this 21st day of August 2012.
BY THE COURT
OLIVER A. SAKSAK
Judge.
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