Public Prosecutor v Michel [1997] VUSC 10; CRC 061 1997 (29 April 1997)

IN THE SUPR SUPREME COURT OF
THE REPUBLIC OF VANUATU

CRIMINAL JURISDICTION

ALIGN="CENTER">CR No. 61 of 1997
CR No. 62 of 1997
CR No. 63 of 1997
7
CR No. 64 of 1997
CR No. 65 of 1997
CR No. 66 of 1997

PUBLIC PROSECUTOR

-v-

PRISCA MICHEL

Public Prosecutor for the State
Public Solicitor for the Defendant.

SENTENCE

In determining what is an appropriate penalty the Court must have the fullest information before it regarding both the offence and the offender.

The prisoner was committed to the Supreme Court for sentence for various charges as follows:

First Lot of Charge

1/. IR No. 1262/1997

That on the 9^th February 1997 the Defendant unlawfully entered May Laban’s house with the intention to commit a crime therein. Thereby contravening Section 143 of the Penal Code.

2/. IR No. 1263/1997

That on the 9^th February 1997 the Defendant stole $90, 000US Dollars, VT 12, 000 cash and some clothes being the property of May Laban. Thereby contravening Section 125 (a) of the Penal Code.

3/. IR No. 1264/1997

That sometimes in July 1997 the Defendant unlawfully entered Evelyn Jacobe’s house with the intention to commit a crime therein. Thereby contravening Section 143 of the Penal Code.

4/. IR No. 1265/1997

That sometimes in July 1997 the Defendant stole 1 green Jacket, 1 white Cardigan, 1 towel, 1 hair dryer, some perfume, $100, 00NZ an other items. Thereby contravening Section 125 (a) of the Penal Code.

5/. IR No. 1266/1997

That sometimes on the 14^th of September 1997 the Defendant unlawfully entered the dwelling house of Evelyn Jacobe with the intention to commit a crime therein. Thereby contravening to Section 143 of the Penal Code.

6/. IR No. 1267/1997

That sometimes on the 14^th September 1997 the Defendant stole 1 handbag, 1 bottle of Whisky, 1 Nike short, 1 Girl’s ring, 1 necklace being the property of Evelyn Jacobe. Thereby contravening Section 125 (a) of the Penal Code.

Second Lot of Charges:

1/. IR No. 1254/1997

That on the 15^th June 1997 she unlawfully entered Serge Beloni’s house with the intention to commit a crime therein. Thereby contravening Section 143 of the Penal Code.

2/. IR No. 1255/1997

That on the 15^th June 1997 she stole 3 clothes hanger, 1 shampoo, 1 hair conditioner, 1 sheet bed, $10, 00NZ, $3,00 US being the property of Serge Beloni. Thereby contravening Section 125 (a) of the Penal Code.

3/. IR No. 1256/1997

That sometimes on the 16^th June 1997 she unlawfully entered Serge Beloni’s house and slept therein. Thereby contravening section 143 of the Penal Code.

4/. IR No. 1257/1997

That on the 19^th June 1997 the Defendant unlawfully entered Serge Beloni’s House and slept therein. Thereby contravening section 143 of the Penal Code

Third Lot of Charges

1/. IR No. 1252/1997

That sometimes on the 19^th June 1997 at Windsor Hotel she unlawfully entered Room No. 27 rented by John L. with the intention to steal. Thereby contravening Section 143 of the penal Code.

2/. IR NO. 1253/1997

That on the 19^th June 1997 at Windsor Hotel the Defendant stole 1 Sony Walkman, 1 Binoculars, 1 Wallet containing $150. 00, 1 other wallet containing $150. 00, 1 video game, 1 timex watch and 5, 000vt being the property of John L. Thereby contravening Section 125 (a) of the Penal Code.

Fourth Lot of Charges

1/. IR No. 1258/1997

That on the 15^th June 1997 at no.2 area, Vila, the Defendant unlawfully entered Jacobe Michel’s house with the intention to steal. Thereby contravening to Section 143 of the Penal Code.

2/. IR No. 1259/1997

That on the 15^th June 1997 at No.2 area she stole 1 shoe, 1 sandal, and some clothe being the property of Michel Jacobe. Thereby contravening to Section 125 (a) of the Penal Code.

Plea taken in the Supreme Court.

Fifth Lot of Charges

1/. IR No. 1245/1997

That on the 18^th August 1997 the Defendant unlawfully entered Dinh Stephane’s house with the intention to steal Thereby contravening section 143 of the Penal Code.

2/. IR No. 1246/1997

That on the 18^th August 1997 she stole 1 yellow wallet containing foreign currencies, 1 green wallet, 1 CD, 1 game boy and a car torch being the property of Dinh Stephane Thereby contravening Section 125 (a) of the Penal Code.

3/. IR No. 1247/1997

That on the 26^th August 1997 at No. 2 area the Defendant unlawfully entered Dinh Stephane’s house with the intention to commit the crime of stealing. Thereby contravening Section 143 of the Penal Code.

4/. IR No. 1248/1997

That on the 26^th August 1997 at No.2 area she stole 1 video camera, 1 radio cassette, 1 shirt, 1 bag Billabong, 1 Nike bag and one sunglass being the property of Dinh Stephane, Thereby contravening Section of 125 (a) of the Penal Code.

Sixth Lots of Charges

1/. IR No. 1466/1997

That on the 26^th October 1997 at No.2 area the Defendant unlawfully entered the dwelling house of Legall Morgane with the intention to steal. Thereby contravening Section 143 of the Penal Code.

2/. IR No. 1467/1997

That on the 26^th October 1997 she stole 1 portable CD, 1 radio cassette CD, 1 sunglass with clothes being the property of Legall Morgane. Thereby contravening section 125 (a) of the Penal Code.

The accuse person was committed to the Supreme Court for sentence on 14 Counts and 6 Counts, new pleas were taken in which the Defendant pleaded guilty to all the charges.

The Defendant committed the similar series of crime of break and enter and stealing on various months and places. As in the first lot of Counts she committed the crime of break and enter and steal in February in May Laban’s House and also in the month of July in Evelyn Jacobe’s home in which both money, in cash and property were stolen.

In the Second Lots of counts she has also unlawfully entered Serge Beloni’s house, justly on the 15^th June 1997 and again repeated the same offence the next day the 16^th June 1997. Again money in cash and other property were stolen.

In the third lots of counts she also on the 19^th June 1997 unlawfully entered room 27 at the Windsor hotel and therein stole cash money and other property belonging to John Lawrence. This was only three days after stealing on the 16^th June 1997 at serge Beloni’s residence.

In the fourth lots of counts she unlawfully entered Jacobe’s home on the 15^th June 1997 and stole Jacobe’s property therein belonging to Jacobe.

So when she committed the crime of unlawful entry and stealing in Serge’s home she has on the same day committed the same crime in Jacobe’s home.

In the sixth lots of counts she committed this similar crime of unlawful entry and steals in Dinh Stephane on the 18^th August 1997 and again on the 26^th August 1997 and stole property therein belonging to Dinh’s.

In the fifth lots of counts she again committed the similar crime of unlawful entry and steal in Legall’s house and stole cash money and other property therein.

LAW

Section 143.

Under Section 143 of the Penal Code, if any person enters a dwelling house of another person and commit a crime therein he/she is liable to be imprisoned for a period of 20 years. And any other places other than a dwelling house the maximum penalty is 10 years.

And with Section 125 : if any person steal any property he/she shall be imprisoned for a period of 12 years.

In all these charges the accuse committed them all in a dwelling house of another person and also stole property therein.

For the limit of sentence of both types of offences, mainly for unlawful entering a dwelling house and committing a crime therein, which is 20 years, it reflect that the offence itself is of a very serious nature and as such the Court must treat this type of offences very seriously. Even stealing too is quiet serious and as such the Court will treat this type of offence as serious but less serious than unlawful entering a dwelling house and committing a crime therein.

STATISTIC

The statistic shows that in 1996 the Magistrate’s Court registered about 90 cases of unlawful entry and in 1997 in records 64. These statistics does not represent conviction in Court but what the Court receive and register in their register book. These figures shows that this type of crime is prevalent amongst other crime for a small population of over 162 thousand people in the Republic of Vanuatu. This may continue to increase if this type of crime is not addressed very well at this stage.

COURT

The Court must play its role in protecting the society by imposing an appropriate and applicable penalty to such crime. However the issue of protecting the society from this type of crime should not be left alone to the law enforcing agencies but the society as a whole should play their respective parts in reducing these type of crime, and the immediate agency in reducing such crime will come from we the parents ourselves. If the parents do not perform their parental duties then more of this type of crime will come up. I say this because in my short time as a Magistrate here in Vanuatu and now in the Supreme Court, ;mostly young offenders appear in Court for the offence of unlawful entry and theft. Even my experience on the bench in PNG I also experience mostly young offenders between the age of twelve to twenty seven commit such crime, and in most cases, property stolen therein are sold again by the offenders for money.

Before me is a girl of the age of fifteen years at the time of committing the offence. I was informed by the accused counsel that the father is a Senior Public Servant and the parent also were not sure and questioned why she committed these crimes.

PROPERTY STOLEN

As submitted by the accused counsel that most of the properties were recovered from the accused but for the money she used them up. The money used were in different currencies which she changes into local currencies, and use them for her own use. There were quiet a lot of money stolen and used by the accused.

MITIGATING FACTORS

The accused is fifteen years old and was still in school when she committed these offences. She pleaded guilty to all charges. She appeared from custody and she was in custody since October 1997 up until the 14 April 1998. She cooperated with Police and now staying with her parents.

Further in mitigation, the council referred to Section 38 of the Penal Code which restrict the Court power on sentencing of young offenders under the age of 16 years. The prosecution also agrees.

In my view, this is not an absolute restriction, as the Court can still sentence an offender under the age of sixteen but must give its reasons. If the Court sentence a young offender to jail and gives its reasons, then under section 38 (2) he/she must be separated from the adult prisoners.

Therefore after considerations of the offences as committed, the offender and further the society as large who have been affected and may be affected, I consider that the appropriate penalty that the Court will imposed will be of two aspects. For the first lots of offences as follows:

COUNT	Date of Offences
a) 1262/1997	9th February 1997
b) 1263/1997	9th February 1997
c) 1254/1997	15th June 1997
d) 1255/1997	15th June 1997
e) 1256/1997	15th June 1997
f) 1257/1997	15th June 1997
g) 1252/1997	19th June 1997
h) 1253/1997	19th June 1997
i) 1258/1997	15th June 1997
j) 1259/1997	15th June 1997

For these groups of offen cs I consider that the period the accused spend in custody would be a sufficient punishment already and therefore I enter a conviction against the accused in all charges and she be oned and discharged.

For Counts:

COUNTS	DATE OF OFFENCES
a) 1264/1997	July 1997
b) 1265/1997	July 1997
c) 1266/1997	13th September 1997
d) 1267/1997	13th September 1997
e) 1245/1997	18th August 1997
f) 1246/1997	18th August 1997
g) 1247/1997	26th August 1997
h) 1248/1997	26th August 1997
i) 1466/1997	26th October 1997
j) 1467/1997	26th October 1997

For the next lots of charges I consider that the Court must impose some penalties on the accuse person as a form of punishment. I consider that this cause as appropriate, even though, she was 15 years old at the time these offences were committed, she acted with maturity and she knew exactly what she was doing was wrong.

Secondly, she continued to commit the same offence and she was using up the money stolen for her own use.

Thirdly, she did not learnt from the first lots of offences committed, that what she was doing was wrong and should stop. For these reasons I will impose a Court Fine as the alternative penalty instead of custodial sentence and therefore make the following orders:

a) 1264/1997	The accused is convicted and order to pay a Court fine of 3, 000 vatu as alternative penalty and in default of payment she will imprisoned for a period of 5 days for every one thousand vatu not paid.
b) 1265/1997	The accused is convicted and order to pay a Court fine of 3, 000 vatu as alternative penalty and in default of payment she will imprisoned for a period of 5 days for every one thousand vatu not paid.
c) 1266/1997	The accused is convicted and order to pay a Court fine of 3, 000 vatu as alternative penalty and in default of payment she will imprisoned for a period of 5 days for every one thousand vatu not paid.
d) 1267/1997	The accused is convicted and order to pay a Court fine of 1, 000 vatu as alternative penalty and in default of payment she will imprisoned for a period of 5 days for every one thousand vatu not paid.
e) 1245/1997	The accused is convicted and order to pay a Court fine of 3, 000 vatu as alternative penalty and in default of payment she will imprisoned for a period of 5 days for every one thousand vatu not paid.
f) 1246/1997	The accused is convicted and order to pay a Court fine of 1, 000 vatu as alternative penalty and in default of payment she will imprisoned for a period of 5 days for every one thousand vatu not paid.
g) 1247/1997	The accused is convicted and order to pay a Court fine of 3, 000 vatu as alternative penalty and in default of payment she will imprisoned for a period of 5 days for every one thousand vatu not paid.
h) 1248/1997	The accused is convicted and order to pay a Court fine of 1, 000 vatu as alternative penalty and in default of payment she will imprisoned for a period of 5 days for every one thousand vatu not paid.
i) 1466/1997	The accused is convicted and order to pay a Court fine of 3, 000 vatu as alternative penalty and in default of payment she will imprisoned for a period of 5 days for every one thousand vatu not paid.
j) 1467/1997	The accused is convicted and order to pay a Court fine of 4,000 vatu as alternative penalty and in default of payment she will imprisoned for a period of 5 days for every one thousand vatu not paid.

Costs: The Defendant is to pay 5, 000 as prosecution costs.
Total Court Fine to be paid is 25, 000 vatu.
Total Prosecution Cost to be paid is 5,000 vatu.
Total Court Fine and Cost to be paid within three months as from today.

DATED AT PORT VILA this 29^th Day of April 1997

R. MARUM
JUDGE