Gamma v Public Prosecutor [2007] VUCA 19; Criminal Appeal Case 08 of 2007 (30 November 2007)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Criminal Appellate Jurisdiction)

Criminal Appeal Case No. 08 of 2007

WARREN GAMMA

-V-

PUBLIC PROSECUTOR

Coram: Chief Justice, Vincent LUNABEK
Justice Bruce ROBERTSON
Justice John von DOUSSA
Justice Oliver SAKSAK
Justice Hamlison BULU
Justice Christopher TUOHY

Date of Hearing: 27th November 2007
Date of Decision: 30th November 2007

Counsels: Appellant in person
Mr. Standish for Respondent

JUDGMENT

1. This is an application for leave to appeal in respect to a sentence imposed in the Supreme Court by Treston J on the 11th April 2005.

2. When the matter was in call over Mr. Hillary Toa appeared for Mr. Gamma and he filed some documents in the Court. However, prior to the allocated fixture date, he chose to absent himself from the Republic of Vanuatu and to leave Mr. Gamma to act for himself before us.

3. The application was filed on 5th November 2007. Under section 94 of the Criminal Procedure Code Cap. 136, Mr. Gamma had 14 days to appeal his sentence. Section 201 of the Code requires Grounds of Appeal against the severity of the sentence should be accompanied by a memorandum lodged within 14 days. This did not occur until 23rd November 2007 and was not served until the 26th November. It was over 2 ½ years out of time.

4. It is therefore necessary for Mr. Gamma to seek the discretion of the Court to extend time limits under section 201 (6).

5. When Mr. Gamma was still represented by counsel an affidavit was filed. The Judge’s notes on sentencing specifically included a reference to the 14 day appeal period. Mr. Gamma now asserts that there were difficulties because of a civil case which was going on against him by the bank, which was the complainant with regard to the criminal charges. Further he says he was waiting for his lawyer to give him advice. He said on 3rd August 2007 he asked the Public Solicitor to initiate an appeal but as Mr. Standish noted, he still did nothing positive for another 3 months.

6. When we talked with Mr. Gamma directly about his position, it became clear that a further factor had been the situation whereby his fiancée (and the mother of his child) has in recent times moved out of his life. His five year old child is now being kept by a baby sitter and it appears clear that the pressures on Mr. Gamma to be back in the community have increased.

7. Although the criminal procedure code does not detail how a discretion to extend time is to be exercised, judicial authority throughout comparable jurisdictions is consistent. It is encapsulated in what was said by the New Zealand Court of Appeal in the Queen v. Knight [1998] NZLR 583 at 589.
   

"The Applicant must demonstrate some special feature or features particular to the case that lead to the conclusion that in all the circumstances justice requires that leave be given. Amongst the considerations which will also be relevant in that overall assessment are the strength of the proposed appeal and the practical utility of the remedy sought, the length of the delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown".

8. There is similar authority in Australia and the United Kingdom.

9. The fundamental test is what in all the circumstances justice requires. This is a case which can only be categorized as involving an extraordinary delay but we find that although at the time of sentencing Mr. Gamma was represented he appears to have been frequently on his own in the intervening time. His domestic situation has markedly altered. There is no prejudice to the Prosecution or any person in the application which is now being made. This man from the word go co-operated with the authorities, admitted his culpability, attempted to repay what he could and undoubtedly is most remorseful.

10. Along side those factors (which in and of themselves might not have been decisive) there are the merits of this case.

11. It cannot be overlooked that although the Judge in sentencing undertook a careful assessment of previous decisions and the approach to be applied, he acted quite independently as to the length of the term. The prosecutor before Treston J submitted on the basis of the authorities an appropriate sentence would be in the range 5 and 7 years. The Judge in fact imposed a sentence of 7 years and 8 and a half months imprisonment.

12. Mr. Gamma’s counsel at the time somewhat unrealistically had submitted that bearing in mind the 3 ½ months he had spent in custody, no further imprisonment should be applied. That was quite foolish but there can be no question that on the merits of this case there was a strong arguable proposition, that the sentence imposed was manifestly excessive, when viewed objectively.

13. Although the point was not specifically conceded by the Prosecution, Mr. Standish responsibly accepted that his real concern was the ability to appeal this long after the event might create a bad precedent. That is a factor but only one. All the competing strands must be assessed.
    
14. We are of the view that there are sufficient factors in this case to treat the circumstances as extraordinary and to assess the merits of this man’s position, who yet again has been left unrepresented.
    
15. As this Court made clear in PP v. Gideon (2002) CAC 07 of 2002, a sentence appeal is not a case of simply substituting the view of the appellate court for that of the court below. But it is of the essence of sentencing that there is consistency, proportionality and comparability in respect of all cases.
    
16. It is to be immediately noted that the offending was very serious. There were 148 counts. The offending extended over 3 and half years. There had been a gross breach of trust. The amount involved was more than 18 million Vatu.
    
17. It is unfortunate that the Judge flirted with the notion that as there was a maximum penalty of 12 years on each charge then potentially this man was at jeopardy of being sentence to 1,776 years imprisonment. He noted that this was a fanciful approach and it is perhaps regrettable that it emerges in his thinking at all. It has no place in sentencing approaches in this country nor would it apply in Australia, New Zealand or England.
    
18. Fortunately there are not a lot of examples in this jurisdiction of offending of this severity.
    

19. No particular assistance is to be gained from the recent decision in Public Prosecutor v. Lizzie Kalotiti Cr 12 of 2007 where offending under this section was dealt with without a custodial sentence. The offending dealt with by Justice Kent in Public Prosecutor v. Benjamin in [1994] VUSE 13 was of a very different character in the amount involved, the time over which the offending occurred and other pertinent circumstances.

20. When we consider a consistent policy in comparable countries towards people who over many years abuse a position of trust involving very large sums, we can only conclude that this sentence is far too long. It is in fact crushing in its impact on a person with no previous conviction and in respect of whom there are proper grounds for optimism that he can again become a useful member of the community.

21. In our judgment when the aggravating and mitigating circumstances are moderately and objectively weighed, a starting point in this case should have been as submitted by the prosecution of 7 to 8 years imprisonment. There was immediate cooperation, pleas of guilty and he has made significant restitution, so that a substantial allowance was justified. The Judge adopted one third and said that included the guilty plea and other mitigating factors including his lack of offending and his otherwise blameless life.

22. Bearing in mind the period which he has already spent in custody (so that there is a time for which he will not be able to apply for parole), we are satisfied that an appropriate effective sentence to operate from the 11th April 2005 should have been 5 years imprisonment.

23. That is a deterrent sentence. This man has an opportunity to reform and to become again a productive and useful member of society. For someone in his circumstances with his background the very clang of the prison doors will have had an enormous effect. Imprisoning him for longer than is necessary to achieve deterrence denunciation and condemnation becomes counterproductive.

24. Leave to appeal is granted. The appeal is allowed. The sentence imposed in the Supreme Court is quashed and substituted with a sentence of 5 years imprisonment effective from 11th April 2005.

Dated at Port Vila, this 30th day of November, 2007

BY THE COURT

Hon. Chief Justice V LUNABEK
Hon. Justice B ROBERTSON
Hon. Justice J von DOUSSA
Hon. Justice O SAKSAK
Hon. Justice H BULU
Hon. Justice C TUOHY