Public Prosecutor v Mathias [1984] VULawRp 3; [1980-1994] Van LR 140 (14 December 1984)

[1980-1994] Van LR 140

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU

Appeal Case No. 3A of 1984

BETWEEN:

PUBLIC PROSECUTOR
Appellant

AND:

MAHIT TOM MATHIAS
Respondent

Coram: Mr Justice L. Cazendres
Mr Justice J. Williams

Counsel: Mr Kattan, Public Prosecutor
Mr Rissen, Public solicitor for respondent

JUDGMENT

[CRIMINAL LAW - JUDGMENTS AND ORDERS - sentencing, jurisdiction]

Mahit Tom Mathias was charged with 3 counts of theft and 3 counts of unlawful entry, contrary to section 143 and section 125 (a) respectively, of the Penal Code.

As may be expected each break-in gave rise to the theft.

The first break-in occurred on 11 April 1982, and the second and third on 8th July 1983.

A serious aspect of the offences is that the properties attacked were dwellings and it was night.

Property stolen took the form of beer, spirits, simple food, and on one occasion, $170-00.

Mathias was one of three culprits jointly charged, all of whom pleaded guilty.

Sentences were imposed on 25th October 1983.

The first accused with one previous conviction which had earned him the modest sentence of 3 months, received a total of 4 years imprisonment.

The second accused with two previous convictions for theft in 1977 and 1978 respectively, was imprisoned for 2 years in all.

The third accused, the respondent, who had no previous convictions, was sentenced to 2 years imprisonment on each count concurrently, of which 6 months was to be served and the balance of 18 months suspended for 3 years.

This is not a Court of revision, it is a Court of appeal; but we comment that the sentences appear to be disproportionate.

On the 3rd November 1983, the Public Prosecutor filed notice of appeal regarding the sentence imposed on Mahit Tom Mathias on the ground that the law of Vanuatu does not empower a Court to suspend part only of a sentence of imprisonment.

On 3rd November 1983 the learned Chief Justice delivered a written judgment setting out the reasons for his sentence.

In his judgment he stated that no provision appears in the Penal Code for suspended sentences but drew attention to Article 45 (1) of the Constitution which states:-

"The administration of justice is vested in the Judiciary, who are subject only to the Constitution and the law. The function of the Judiciary is to resolve proceedings according to law. If there is no rule of law applicable to the matter before it, a Court can determine the matter according to substantial justice and whenever possible, in conformity with custom."

He then quoted section 44 (1) and (2) of the Courts Regulations, 1980:-

"(1) Subject to the Constitution, any written law and the limits of its jurisdiction, a court shall have such inherent powers as shall be necessary for it to carry out its functions.
(2) For the purpose of facilitating the application of any written law or custom, any provision may be construed or used with such alterations and adaptations as may be necessary and every court shall have inherent and incidental powers as may be reasonably required in order properly to apply such written law or custom."

The learned Chief Justice apparently proceeded on the basis that there is no law in Vanuatu which provides for suspended sentences.

He made no reference to Joint Regulation 24 of 1971 made on the 16th day of November 1971, the preamble to which pronounces that it is:-

"TO PROVIDE for the suspension of sentences and the imposition of alternative penalties."

If the learned Chief Justice considered that Joint Regulation 24 of 1971 has been repealed by some later provision before or after Independence, he did not say so; nor has he indicated any supervening legislation from which we could conclude that although there was provision for suspended sentences the law relative to that aspect is no longer extant.

At the present time much of the statute law of Vanuatu has not been properly printed, bound and published in the form of titled volumes. Much of it appears in the form of typed notices such as Joint Regulation 24 of 1971. Repealing enactments are no doubt in the same form. Their preservation appears to have been dependent upon the efficiency of the filing systems of the various departments who received copies of the separate typed sheets of statutes as they came into existence. Arrival and departure of staff, professional officers and departmental heads and constant handling and borrowing of the documents seems to have made them scarce and precious to those possessing them. Parts of some files are missing in some departments. Finding the law applicable requires expenditure of valuable time.

This state of affairs appears to be a hang-over from Condominium days and cannot be entirely attributed to the present legislation.

It is to be hoped that the necessary funds can be found to improve matters.

Mr Kattan, Public Prosecutor, and Acting Attorney-General has assured us that his researches reveal that Joint Regulation 24 of 1971 has not been repealed and is still in existence.

Mr Rissen, Public Solicitor, who appeared for Mathias concurred in Mr Kattan's statement that Joint Regulation 24 of 1971 is not repealed.

We note that the Courts Regulation, 1980, has not repealed Joint Regulation 24 of 1971.

It is our conclusion therefore that it has not been repealed. Accordingly the learned Chief Justice was obliged to act under such powers as Joint Regulation 24 of 1971 gives the Courts in relation to suspended sentences. Section (1) (a) thereof empowers the Court to "suspend the execution of any sentence it has imposed on him..." The period of suspension is limited to a maximum of 3 years. It is the whole sentence which may be suspended.

For the purposes of this appeal we are not concerned with any of the provisions (b), (c), and (d) of section 1. There is no power contained in the Regulation to order suspension of part only of a sentence. The authority is limited to that of ordering immediate imprisonment or suspension thereof.

As Mr Kattan has correctly submitted, no Court has power to add to or detract from the specific authority vested in it by the legislature within the four corners of any statute.

The provision referred to by the Chief Justice in the Constitution and the Courts Regulations, 1980, do not enable judicial extension of existing statutory powers. Section 44 (1) of the Courts Regulations, gives power to carry out its duty of imposing and enforcing the suspension of the whole sentence and to deal with a convicted person who breaks any condition attached to the suspension. Section 44 (2) declares that it provides a mode of construing provisions so as to make them capable of enforcement. There can be no problem in construing section 1 (a) of Joint Regulation 24 of 1971; the Court suspends the whole sentence or it does not. Introduction of partial suspension cannot be justified as a mode of facilitating the application of the power to suspend or not to suspend the entire sentence.

Likewise, Article 45 (1) of the Constitution has no application where there is provision for suspending of sentences. The legislature did not intend to provide for partial suspension.

Accordingly, we allow the appeal to the extent that we find that the Chief Justice had no power to suspend part of the sentence.

The learned Public Solicitor did not oppose the appeal but supported it.

He was concerned as to the accused's position in that this Court, in setting aside the order for partial suspension must enforce or suspend the sentence in its entirety.

The accused has served 6 months and must have been released from prison not later than 25th April 1984 which is eight months ago. It would be grossly unfair to order that he now return to serve the 18 months remaining.

Therefore we substitute a sentence of 6 months' imprisonment.

Dated at Vila this 14th day of December, 1984.

J. WILLIAMS
L. CAZENDRES