Public Prosecutor v Kalotiti [2007] VUSC 94; Criminal Case 12 of 2007 (2 November 2007)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

Criminal Case No. 12 of 2007

PUBLIC PROSECUTOR

-V-

LIZZIE KALOTITI

Coram: C.N. TUOHY

Date of Hearing: 2 November 2007
Date of Decision: 2 November 2007

Counsels: Mr. Molbaleh for Public Prosecutor
Mr. Toa for Defendants

SENTENCE

1. Lizzie Kalotiti has appeared for sentence having pleaded guilty to ten charges, five of theft, five of forgery. The charges involved forging cheques and obtaining the proceeds of the forged cheques, these cheques being available to her in the course of her employment and being her employer’s cheques.
The total amount involved was 539,500 VT which was obtained over a period of about a couple of months at the beginning of 2006.

2. Ms. Kalotiti has no previous conviction. She is aged 39, she is a single mother and has three children and still has responsibilities for her children. I have read the pre-sentence report and listened to the helpful submissions of both counsel and I have been able to observe Ms. Kalotiti during the time since she has come to Court. I believe that she is a very intelligent and talented person, a very useful employee as the reference shows, a person with talents. She has not had a particularly easy life having really had to look after herself and her children alone. However, she is capable of obtaining good employment or certainly was prior to her convictions for these offences of dishonesty which would probably make any future employer think twice.

4. The information before the Court shows to me that she was under particular pressure financially at that time and she weakened and gave in to temptation and the result has been disastrous for her, loss of employment, appearance before the Court and a conviction and facing a sentence today.
   
5. I do not think that this offence merits imprisonment for a person who is a first offender. Even though, as Mr. Molbaleh pointed out, this is a considerable sum of money in terms of Vanuatu anyway and these were deliberate and planned offences carried out by an intelligent person and there is no doubt of that. However, I think it is a case where the Court should exercise some mercy. Mr. Molbaleh made a thoughtful submission that the Court should order compensation which has been agreed to and as a means of making sure that it is paid, impose a sentence of imprisonment and suspend it. I considered that but I do not think that imprisonment is the appropriate sentence. So suspended or not I do not intend to impose it.
   
6. Of course I will impose compensation. It is automatic that people who commit crime should first of all have to pay back any loss caused by that crime. In my mind that is hardly even a penalty, it is simply you took the money, you owe it.
   
7. Ms. Kalotiti has offered 10,000 VT and to her credit she has already made her first payment. She suggested more should be paid but I am not going to make any order for more. If she wants to pay more then she can but I expect the Court order to be complied with absolutely, if it is not the Court can take action, and impose other types of sentences.
   
8. So first of all there will be an order for compensation to be paid to the ANZ Bank in the total sum of 539,500 VT. It is to be paid at the rate of 10,000 VT per fortnight with the first payment due on the 15 November 2007.
   
9. It may be that more money is owed to the ANZ Bank. However, the Court can only impose compensation in relation to charges that have been proven and which result in conviction. The compensation order made does not prevent the ANZ Bank from exercising any civil remedies that it might have against Ms. Kalotiti.
   
10. I consider there ought to be a penalty over and above compensation which is only just paying back what was taken. The Courts previously did not have available to them really any sentences apart from imprisonment, suspended imprisonment and a fine. However with the change of the Penal Code Act the Court now has available a much wider range of sentence. Previous cases must be read bearing in mind that the Courts in the previous cases did not have available to them the options they have now. I consider that community work is appropriate. Ms. Kalotiti has to give back something to the community for the offence which is not just against ANZ, like all criminal case it is an offence against the State, the community generally.
    
11. I sentence Ms. Kalotiti as well to 120 hours community work. The Correctional Services will make the arrangement for that community work to be carried out. Under the law, a sentence like that must be completed within a year. She has certainly got the time to do community work of some description which will be decided by the Correctional Services, probably in consultation with your village or possibly your church. So that is the sentence of the Court.
    

Dated at Port Vila this 2nd November 2007

BY THE COURT

C.N. TUOHY
Judge