Public Prosecutor v Firiam [1998] VUSC 87; CRC 008 1998 (5 November 1998)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CRIMINAL JURISDICTION

CR No. 08 of 1998

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PUBLIC PROSECUTOR

-v-

STEPHEN JOHN FIRIAM
TATO KALO

IALU KALANGA
OBI PATRICK
JOHN HENDRY
JERRY KANAS
SERGE ATUARY
CHRISTOPHER HANGO

Public Prosecutor for the State
Public Solicitor for the Defendants.

SENTENCEThere were 19 counts laid against different defendants as appearedeared to each count and I will proceed for sentence on the guilty plea count only.

1. Stephen Firiam pleaded guilty to:

a) Count 1
b) Count 2
c) Count 14
d) Count 18
e) Count 19

2. Ialu Kalanga pleaded guilty to:

a) Count 7

3. John Hendry pleaded guilty to:

a) Count 7
b) Count 9
c) Count 11

4. Obi Patrick pleaded guilty to:

a) Count 9
b) Count 11
c) Count 18
d) Count 19

5. Jerry Kanas pleaded guilty to:

a) Count 10 only

6. Serge Atuary pleaded guilty to:

a) Count 18
b) Count 19

7. Christopher Hango pleaded guilty to:

a) Count 18
b) Count 19

SUMMARY

The offence committed by each defendant was over trocas shell belonging to Dinh Van Than stolen from SMET. Stephen, John and Jerry the main leaders and according to the Police statement that Stephen Firiam was the person who mobilized the other to steal the trocas shell. Stephen Firiam was one employer of Dinh Van Than company prior to committing the offence. He was the person who cut the lock of the container where the trocas were kept and replaced it with his own lock, so when he and the others want to go and steal the trocas he will open it with the key. He pleaded guilty to Count 1 where in the month of February he stole three bags of trocas and sold it for 43, 000vatu and in Count 2 he again in the month of March stole another two bags and sold it for 67, 000 vatu. In Count 14 in the month of April he again unlawfully enter SMET with the intention to steal. Again on 28^th August 1996 unlawfully enter Smet premises with the intention to steal and for Count 19 on the same date stole 9 bags of trocas shell and sold the shells for 191, 000 vatu.

Ialu Kalonga

As to Ialu Kalonga, he pleaded guilty to Count 7. For Count 7 he was with John Hendry and Stephen Firiam. However Stephen Firiam pleaded not guilty. So Ialu and John Hendry got 2 ½ bags of Trocas shell for 45, 000 vatu. In Count 9 in company with John Hendry unlawfully enter Smet with the intention to steal.

John Hendry

He pleaded guilty to Count 7 and the fact are similar to Ialu Kalonga brief facts. John, pleaded guilty to Count 9 that sometime in April 1996 unlawfully entered Smet premises with the intention to steal. He further pleaded guilty to Count 11 that on the 18^th August 1996 together with Obi Patrick, Ialu Kalonga stole 4 ½ bag of trocas and sold it for 46, 125 vatu.

Obi Patrick

Obi Patrick pleaded guilty to Count 9, 11, 18 & 19. In Count 9 he was in company with Ialu and John Hendry on April 1996 entered La SMET with the intention to steal and on Count 11 stole 4 ½ bag of trocas shells the property of Dinh Van Than and sold it for 46, 125 vatu.

As for Count 18 together with Stephen Firiam, Serge Atuary and Christopher Hango all entered la Smet with the intention to steal and for Count19 they all stole 9 bags of trocas shell and sold for 191, 000 vatu.

Jerry Kanas

Jerry Kanas pleaded guilty to Count 10 for Aiding and abetting as he transported the boys of stolen trocas and sold them knowing that they were stolen property.

Serge Atuary

Serge pleaded guilty to Count 18 being that he was with the others, Stephen F., Obi Patrick and Christopher Hango all entered La Smet with the intention to steal and for Count 19 they stolen key, therein 9 bags of trocas shells which they sold for 191, 000 vatu.

Christopher Hango

He pleaded guilty in Count 18 and 19 and the facts which as stated as above are the same.

The unlawful entry all were committed in the SMET premises where the trocas shells were kept. These trocas belonged to Dinh Van Than. Jerry Kanas was used to sell the shells. The money they each received on those stealing occasions were shared amongst the defendants. The main character is Stephen Firiam who was once an employee there but because he was not paid properly, then he resorted to stealing the trocas shells. Jerry Kanas was the man in transporting the trocas shell.

The defendant pleaded guilty to all these said charge against them each, no indication to say that they have repaid the money received from selling the trocas shells.

The usual time they go and steal was about 2.00am (night) and in John, Stephen and Ialu’s statement, all stated at 2.00am. The money they received after selling the trocas shells used to be shared amongst themselves and sometimes they go drinking.

Stephen Firiam is 25 years old, and only staying together with a woman, the woman is employed and Stephen has a Kava bar. They have a child to their relationship. He used about 200, 00 vatu from the trocas shells that he stole and he is prepared to repay this amount.

Ialu Kalonga is 21 years old. He is also living a de facto relationship with another woman and they had a child to their relationship. He is now working with Himford and earns about 16, 000 vatu a fortnight and his wife is unemployed. He used up about 50 000 vatu and is also prepared to repay this amount. There were two prior convictions but are not relevant to this charge.

John Hendry is 22 years old and employed with Vate Electrical and earns about 12, 000 vatu a fortnight. He is staying with his parents at Freshwater and he is looking after the family. He has two prior convictions, which are irrelevant to this charge. He used about 55 000 vatu and he is prepared to repay this amount.

Christopher Hango is 25 years old, not employed, he has a prior conviction which is irrelevant to this charge.

In view of sentencing, what was the reason of the long delay, no information to explain.

On submission by the defendants’ counsel the reason they did that is because of false of promises by Dinh Van Than to pay them and because he failed to pay them, they resorted to stealing his trocas shells and sold them for money. In contrast, the method of stealing did not show that, as the stealing went on for a number of times. Furthermore, taking the law in their own hands to justify their wants or desire is illegal.

The offence they all committed was about 2.00am in those nights. The offence under section 143 weren’t committed in a dwelling house; the maximum penalty is 20 years and other than a dwelling house is ten years. La Smet is not a dwelling house and therefore the maximum penalty is ten years. Section 125 (a) of the Penal Code that is for stealing, the maximum penalty is 20 years. And therefore both are serious offences.

The defendants have not repaid any money at all to Dinh Van Than and as submitted by the counsels for the defendants that they are prepare to repay what they have received.

The crime character was not of many different kinds but of one kind only at the la Smet premises and stole only trocas shells.

In view of what I have explained, I consider to impose court fine and also to exercise the powers under section 42 0f the C.P.C. to exercise the power under section 42 of the Penal Code I took this course as the appropriate penalty for two main reasons:

1. To allow the owner of the property to be repaid what he has lost and

2. Some of the defendants are already employed and to sentence you all will also mean that they will all lose their jobs.

And therefore I will impose the following orders against each Defendant:

Stephen Firiam is convicted on Count 1, 2, 14, 18 & 19.

Count 1: Defendant is ordered to pay a Court fine of 50, 000 vatu to be paid within 60 days as alternative penalty in default be imprisoned for a period of one week for every one thousand vatu not paid.

Sentence is deferred on Count 2,14, 18 & 19 on the following conditions:

a) That before passing sentence, I order that the Defendant is to appear for sentence when called upon by the court to appear for sentence within 3 years on the following conditions:

i) That within the period three years you shall not be found guilty of any offence;

ii) You shall within 6 months pay to Din Van Than the amount of 61 000 vatu as compensation and also 191 000 vatu to be paid together with Obi Patrick, Serge Atuary and Christoher Hango as compensation for loss.

b) In the event that you do not comply with these orders you shall be in breach of these conditions impose on you under section 42 of the Penal code and you shall be called upon for sentence.

Ialu Kalonga is convicted on Count 7

On Count 7, Defendant is ordered to pay a court fine of 30, 000 vatu as alternative penalty in default be imprisoned for a period of one week for every one thousand vatu not paid.

John Hendry is convicted on Count 7, 9 & 11.

On Count 7, Defendant is ordered to pay a Court fine of 30, 000 vatu within 30 days as alternative penalty, in default of payment be imprisoned for a period one week for every one thousand vatu not paid.

Sentence is deferred on Count 9 & 11 on the following conditions:

a) That before passing sentence, I order that the Defendant is to appear for sentence when called upon by the court to appear for sentence within 3 years on the following conditions:

i) That within the period three years you shall not be found guilty of any offence;

ii) You shall within 6 months pay to Din Van Than the amount of 46 125 vatu as compensation for loss to be paid together with Obi Patrick.

b) In the event that you do not comply with these orders you shall be in breach of these conditions impose on you under section 42 of the Penal code and you shall be called upon for sentence.

Obi Patrick is convicted on Count 9, 11, 18 & 19.

On Count 9, Defendant is ordered to pay a Court fine of 40, 000 vatu to be paid within 40 days as alternative penalty, in default be imprisoned for a period of one week for every one thousand vatu not paid.

Sentence is deferred on Count 11, 18 & 19 on the following conditions:

a) That before passing sentence, I order that the Defendant is to appear for sentence when called upon by the court to appear for sentence within 3 years on the following conditions:

i) That within the period three years you shall not be found guilty of any offence;

ii) You shall within 6 months pay to Din Van Than the amount of 46 125 vatu as compensation for loss to be paid together with John Hendry and also 191 000 vatu to be paid as compensation for loss to be paid together with Stephen Firiam, Serge Atuary and Christopher Hango.

b) In the event that you do not comply with these orders you shall be in breach of these conditions impose on you under section 42 of the Penal code and you shall be called upon for sentence.

Serge Atuary is convicted on Count 18 & 19.

On Count 18, Defendant is ordered to pay a Court fine of 30, 000 vatu to be paid within 30 days as alternative penalty, in default to be imprisoned for a period of one week for every one thousand vatu not paid.

Sentence is deferred on Count 19 on the following conditions:

a) That before passing sentence, I order that the Defendant is to appear for sentence when called upon by the court to appear for sentence within 3 years on the following conditions:

i) That within the period three years you shall not be found guilty of any offence;

ii) You shall within 6 months pay to Din Van Than the amount of 191 000 vatu as compensation for loss to be paid together with Stephen Firiam, Obi Patrick and Christopher Hango.

b) In the event that you do not comply with these orders you shall be in breach of these conditions impose on you under section 42 of the Penal code and you shall be called upon for sentence.

Christopher Hango is convicted on Count 18 & 19:

On Count 18, Defendant is ordered to pay a court fine of 30, 000 vatu within 30 days as alternative penalty, in default to be imprisoned for a period of one week for every one thousand vatu not paid.

Sentence is deferred on Count 19 on the following conditions:

a) That before passing sentence, I order that the Defendant is to appear for sentence when called upon by the court to appear for sentence within 3 years on the following conditions:

i) That within the period three years you shall not be found guilty of any offence;

ii) You shall within 6 months pay to Din Van Than the amount of 191 000 vatu as compensation for loss to be paid together with Stephen Firiam, Obi Patrick and Serge Atuary.

b) In the event that you do not comply with these orders you shall be in breach of these conditions impose on you under section 42 of the Penal code and you shall be called upon for sentence.

Jerry Kanas

Defendant is convicted and is ordered to pay a Court fine of 40, 000 vatu to be paid within 40 days as alternative penalty in default of payment be imprisoned for a period of one week for every one thousand vatu not paid.

DATED AT PORT VILA this 5th day of November 1998

R. MARUM. MBE
JUDGE

Mr. Willie Daniel for the Public Prosecutor
Mr. Hilary Toa for the Public Solicitor