Enock v Public Prosecutor [2000] VUSC 8; Criminal Appeal Case 001 of 2000 (7 March 2000)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

HELD AT LUGANVILLE/SANTO

(Appellate Jurisdiction)

Appeal Case No.1 of 2000

ARNOLD ENOCK and

JOE LEVIS

Appellants

-VS-

PUBLIC PROSECUTOR

Respondent

Coram: Before Mr Justice Oliver A Saksak

"> Ms Cynthia Thomas - Clerk

Mr Bill Bani Tangwata for the Appellants

Ms Kayleen Tavoa for the Public Prosecutor

JUDGEMENT

This is an appeal against the sentences imposed on thellants by the Senior Magistrate's Court on 9th Februaebruary 2000.

The Appellants were both charged with two Counth of unlawful entry contrary to section 143(1) and thnd theft contrary to section 125(a) of the Penal Code Act Cap.135. Both appellants appeared before the Senior Magistrate unrepresented and on arraignment they both pleaded guilty as charged.

The facts of the case were that on or about 14 November 1998 the appellants broke into Akiong Store in Luganville and stole four cartons of beer, half a carton of shampoo and some tinned meat and fish.

On their own admission the Court below imposed a sentence of 3 months imprisonment on both appellants for the the charge of unlawful entry and 4 months imprisonment on both appellants for the charge of theft. In addition the appellants were ordered to make restitution by paying a total of vt27,000, that is vt13,500 each to Akiong Store.

They both appeal against the sentenceiming that they were excessive on the grounds that the lear learned Senior Magistrate did not take into account mitigating factors of each appellant in considering sentence. The Notice of Appeal dated 25th February, 2000 specifies the grounds and the mitigating factors of each appellant. In addressing the Court, Mr Tangwata submitted those grounds and factors for the purposes of indetermining this appeal. Mr Tangwata submitted that had the Court below considered these factors, it would have thought it appropriate to suspend the appellant's respective terms of imprisonment.

ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Ms Tavoa submitt the Court that at the time when the appellants were sentenced the mitigating factorsctors were not brought to the attention of the Learned Senior Magistrate. I have seen the record of proceeding in the Court below and agree with Ms Tavoa. When the Learned Senior Magistrate asked Mr Levis if he had anything to say, he said, "I have nothing to say". As for Mr Enoch he only confirmed that he stole some cans of meat. They both had the opportunity to speak but did not put to the Court their personal and family backgrounds and other circumstances that would help the Learned Senior Magistrate decide the appropriate amount of sentences or penalty.

It was submitted to the Court on behalf of Mr Lthat he was detained for a period of 6 days without a lawful warrant which he claims as a breach of his constitutional right. Ms Tavoa submitted that such detention was necessary and appropriate under section 9 of the Criminal Procedure Code Act.

ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> It was unfortunate that Mr Levis had to face that situation and if he has any complainants he should resort to the usual process but this Court will not rule on the applicability of section 9 at this stage.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> It was submithat Mr Enoch had been reformed although he appeared in Court in 1998 for the same e offences which he committed at the same place, he did not breach the 12 months good behaviour bond improsed on him. Ms Tavoa in response submitted that Mr Enoch had clearly breached his good behaviour bond.

As for Mr Levis Ms Tavoa has no objection if a suspended sce were substituted.span>

Taking all the submissions and considering all the circumstances of the case I am of the view that Mr Enoch was fortunate to receive the sentence that the received. Unlawful Entry under section 143(1) of the Act carries a maximum penalty of 10 years imprisonment. Theft under section 125(a) of the Act carries a maximum of 12 years. Each appellant was sentenced to 3 months for Unlawful Entry and to 4 months for theft which sentences run concurrently making a total of 4 months. That is not an excessive sentence, indeed it is on the lower side.

Considering that Mr Ehad breached his good behaviour bond, he now has no excuse to receive a custodistodial sentence. It is the view of this Court that this sentence is not excessive and the Court will not interfere with the sentence imposed by the Court below. And I so rule.

As for Mr Levis, in view of the Prosecution's not objecting, the Court is of the view that had he made use of the opportunity given to him by the Court, the Court would have considered a more appropriate form of penalty.

I therefore consider that he should have appropriately been given a suspended sentence with a stern warning not to repeat similar offences in the future. I therefore allow the appeal in part as far as Mr Levis is concerned by substituting the Order of the Court below in respect of the sentence of imprisonment by imposing a sentence of imprisonment for 4 months concurrent but suspend the sentence for a period of 2 years. The appellant must behave himself within this period. And I so Order. The Restitution Order is not affected and remains the same.

DATED at Luganville thh day of March, 2000.

BY THE COURT

Oliver A. Saksak

Judge