Public Prosecutor v Issachar [2002] VUSC 6; Criminal Case No 001 of 2001 (11 February 2002)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Criminal Jurisdiction)

Criminal Case No.01 of 2001.

PUBLIC PROSECUTOR

-v-

HOLLINGSON ISSACHAR

Coram: Mr. Justice Marum MBE

Ms. Carol Singh for the Prosecution

Mr. George F. Boar for the Defendant

JUDGMENT

Offence

The defendant was charged with 2 counts. Count 1 was withdrawn and Count 2 for continuation.

He was charged for misappropriation under Section 125 (b) of the Penal Code Act [CAP. 135], which the offence reads: -

The defendant between the 23 of December 1999 and April 2000 he took VT511,846 from Emile Bule, Emile Bule was the Chairman of South Pentecost Community, to import some goods directly from Australia but fail to import the goods and used the money for his personal use.

Misappropriation defines under Section 123 as follows: -

“A person commits misappropriation of property who destroys, wastes, or converts any property capable of being taken which has been entrusted to him for custody, return, accounting or any particular manner of dealing (not being a loan of money or of monies of consumption).”

Dispute

There are two versions to the side of the evidence in this matter.

1. The prosecution is referring to misappropriation, when money was given to the defendant directly to order goods from Australia.

2. The defendant is saying he did not receive those money, however, he was receiving 10% from sale of kava from the Pentecost Community as their consultant.

Issues

As the offence involved money given to the defendant directly for order of goods from Australia the Court is faced with two issues.

1. Did Emile Bule give VT511,846 to the defendant to order goods from Australia for the South Pentecost Community?

2. If he did then do the defendant misappropriated that money?

Issue No. 1: Did Emile Bule give VT511,846 to the defendant to order goods from Australia for the South Pentecost Community?

Emile Bule was the Chairman for the South Pentecost Community that involved in sale of kava. That time the defendant was their business consultant. I accept the evidence by Emile Bule that he made an arrangement with the defendant for the defendant to order goods directly from Australia for the South Pentecost Community and he will give the money to him for the S. P. C. And the defendant agrees to receive the money and to make order. The first payment that the defendant asked for was VT12,000 and the defendant said it was for payment for business card. The money was given to him. Sometime later, Emile Bule gave another Vt300,000 this was for payment for cargoes and later another Vt85,000.

These were cash money paid to the defendant and not receipted. The defendant’s version of the evidence was that he did not receive any money from Mr. Bule. The defendant’s evidence in chief made no mention or explanation over the amount of VT511,846, and his evidence in chief was mostly over the defendant consultant business with the S. P. C. with receipt of 10% as commission from the sale of kava by T. B. J. Company. That is when T. B. J. Company, after going to Pentecost and pays for the peoples kava, the T. B. J. Company pays out commission to the defendant where he receives 10%, Michael 15% and Emile Bule 15%.

Even in cross-examination he denied receiving from Emile Bule any money. However, Emile Bule in his evidence paid him VT12,000 in November 1999 and there after gave him another VT300,000 for payment of cargoes, he gave another VT85,000 and the last payment of VT114,000 was in March 2000. So the money given to the defendant was between November 1999 to March 2000. The defendant was asked in cross-examination to explain the deposits of VT65,314 cash on the 13^th December 1999, VT10,000 cash deposited on the 28^th January 2000, cash deposited of VT300,000 on 16^th February 2000, and cash deposit of VT97,000 on 2^nd March 2000. He appeared not to know from what source the money came from and how they were deposited in his account. The time proximity from when these money given to him and deposited shows that the defendant received that money in cash and as shown by the large deposits. No good explanation from the defendant. This is his account and he would know exactly how much he deposited to his account. At least he would have some general idea from what source the money came from and how much, as the activities of deposit within those periods was very little as compared to the string lines of withdrawals. I can only draw prime facie inferences that, the money given to the defendant some of that money was deposited into his account. And then continued to withdrawn.

Progress

At least the defendant wrote to Mr. Robert Brown on the subject of order of “ANYWAY Goods” on the 18^th February 2000, and within the period of these money given to him. In his letter he wrote: -

“Please find attach is the order form completed for our first business with you. Please work out the price and fax over the final papers and I will put the money in the account as required.”

This confirms that the defendant had the money with him to pay for the goods. With this letter, it is clear that the defendant has intended to pay goods from Mr. Robert Brown.

The letter (P. 1) of the 16^th May 2000 by Emile Bule to the defendant asking him to repay that money back to the S. P. C. account with N. B. V. In the plaintiff’s evidence, which I accept, that he wrote this letter after six months waiting for the goods to be received. This is evidence of fact that the defendant already received the money.

On the evidence of James Aru, the police approached the defendant several times, for him to go to the police station for questioning over the matter, and fail to come on those occasions, even after promising police to go. That’s why the police have to go to his village at Pango to take him to the police station. I therefore, can only draw prime facie inferences that money he received from Mr. Bule was to be sent to Mr. Brown for the goods. This did not occurred.

Credibility

The defendant was cross-examined on the payment of business license.

The defendant admitted that he paid for his business license for year 2000. The evidence was in the contrary, that is by the letter (P. 2) from the Collection of Customs and Inland Revenue, by after 21^st November 2000 the defendant still did not pay for his license fee. I find that he told lies that he paid for his business license. As such business license normally paid in January or soon thereafter. By this evidence I can only draw a prime facie inferences that the defendant cannot be a reliable witness of fact in this case.

On the whole of the evidence, I am satisfied beyond all reasonable doubt that Mr. Emile Bule gave the total amount of VT511,846 for him to pay for business card and order goods for the people of the South Pentecost Community.

Issue No. 2 – Misappropriation

The defendant has not returned the money given to him for payment. The money was entrusted to him to pay for those goods. He was already receiving 10% from sale of kava for his administrative cost. Mr. Emile Bule in his evidence, which I accept, confirm that the defendant was already paid from the 10% commission and no need not charge the S. P. C. again.

The money for the South Pentecost Community has not been returned to them up until today. The defendant was already given notice by letter of 16^th May 2000 (P.1) to return the money. No explanation from the defendant as to how he used the money. Section 123 states, as relevant to this case: -

“A person commits misappropriation of property who … converts any property capable of being taken which has been entrusted to him for custody … is said to misappropriated the money.”

In this case, the defendant was entrusted to keep the money for payment of goods from Australia. This was in line with the responsibilities of the defendant as he specified in his letter of 19^th January 2000 (P. 5) paragraph 4 which states: - “Get orders of merchandise goods from your community for overseas and local supplies for your trade stores with ANYWAY Products.”

The defendant has failed to deliver the goods to the S. P. C. as paid for. He has not refund the money to the S. P. C. when asked to return the money to them. He has come to this Court denying receiving the money. I am satisfied that he had converted the money for his personal use and therefore, he has misappropriated that amount of money of VT511,846. For all these reasons, I find the defendant guilty as charged.

Dated at Port Vila, this 23^rd day of January 2002.

R. MARUM MBE

JUDGE.

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IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Criminal Jurisdiction)

Criminal Case No.01 of 2001.

PUBLIC PROSECUTOR

-v-

HOLLINGSON ISSACHAR

Coram: Mr. Justice Marum MBE

Ms. Carol Singh for the Prosecution

Mr. George F. Boar for the Defendant

SENTENCE

The defendant was charged under Section 125 (b) of the Penal Code which carries a maximum penalty of 12 years imprisonment. The defendant pleaded “Not Guilty” to the charge. On trial, the defendant was found guilty as charged.

This is a clear case whereby money from the SPC of VT511,846 in cash was given to the defendant for him to assist them to pay for goods in Australia. These people are village people and they’ve hired the defendant to do this work on their behalf, with the confidence that the defendant will deliver the goods to them on payment of that cash money. The chairman on behalf of the SPC, Mr. Bule, have demanded the defendant to return the money to them. He even saw the police for assistance, but the defendant kept avoiding him and the police. The SPC has placed their trust on the defendant and the defendant has misused that trust. At this stage the money has not been returned to SPC, and that is a loss to them.

In sentencing, the Court will impose a custodial sentence as oppose to any other penalty as the appropriate penalty. However, the community still need their money to be returned, and therefore, the Court consider in imposing a custodial sentence, will stay the execution of the sentence, to give time to the defendant to pay off the full amount plus costs involved.

I therefore make the following orders:-

1. The defendant is convicted and sentenced to 2 years imprisonment.

2. The two years imprisonment shall not be executed for a period of three months on the following conditions:-

a) That the defendant shall repay the amount VT511,846 to the South Pentecost Community, through Emile Boule within 3 months from today. If the defendant does not pay the total amount of VT511,846 plus costs that to be ordered, he shall serve his two years imprisonment;

b) If the defendant pay VT511,846 plus costs that to be ordered, then the defendant’s sentence of two years be suspended for two years on condition that the defendant within the period of two years shall not be convicted of any offence. If he does, then he shall serve his two years of imprisonment. If he does not then he shall be discharged upon these orders.

3. Upon hearing counsels on costs, I hereby order that the defendant shall pay costs of VT61.200 to the Public Prosecutor within 3 months from today.

Dated at Port Vila, this 11^th day of February 2002.

R. MARUM MBE

JUDGE.

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IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Criminal Jurisdiction)

Criminal Case No.01 of 2001.

PUBLIC PROSECUTOR

-v-

HOLLINGSON ISSACHAR

Coram: Mr. Justice Marum MBE

Ms. Carol Singh for the Prosecution

Mr. George F. Boar for the Defendant

APPLICATION FOR COSTS

Upon hearing counsels on costs, I hereby order that the defendant shall pay costs of VT61.200 to the Public Prosecutor within 3 months from today.

Dated at Port Vila, this 11^th day of February 2002.

R. MARUM MBE

JUDGE.