Public Prosecutor v Samuel [2010] VUSC 13; Criminal Case 124 of 2009 (19 March 2010)

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

CRIMINAL CASE No.124 OF 2009

PUBLIC PROSECUTOR

V

MELIANA SAMUEL

Coram: Chief Justice Vincent Lunabek

Counsel: Mr Leon Malatungun for the Public Prosecutor
Mr Andrew Bal for the Defendant

SENTENCE

This is the sentence of the Defendant, Meliana Samuel. Meliana Samuel was charged with a total of forty eight (48) counts of forgery and theft: Twenty four (24) counts of forgery, contrary to section 140 of the Penal Code Act [CAP.135] and twenty four counts of theft, contrary to section 125(a) of the Penal Code Act [CAP.135].

On 10th December 2009, she pleaded guilty to all forty eight (48) counts of forgery and theft.

The brief facts are reproduced from the prosecution’s brief of facts as follows:

On the 18th of November 2008, the managing director of the South Sea Shipping Mr Bari Amos, launched an official complaint to the police against the Defendant regarding the misused of funds kept in the South Sea Shipping Cheque Account No.14274 at the ANZ Bank in Port-Vila.

The Defendant had misused an amount of money leveled at the rate of eleven million Vatu (VT11, 000,000) and particularized in the retyped indictment.

The Defendant was the former Crew and Passengers Manager of the South Sea Shipping Company. The Company employed the Defendant for almost 8 years. The Company had placed trust on her by granting her the privilege to be a signatory to a joint Company’s bank account.

She was also responsible for all aspects of cash withdrawals for the Company’s account No.14274 which has to be signed by both the Defendant herself and the Managing Director (Bari Amos) for official business.

Later, the Defendant was terminated and ceased to work on 18th November 2008 due to her serious misconduct with the Company’s financial affairs. It was shown through the investigation that from the months of April to November 2008, the Defendant altered few Company’s cheques account No.14274 on different dates with the intention to defraud the Company’s account for personal gain at the rate of VT11,000,000, the particulars of the Company’s misused funds were shown in the retyped charge sheet mention above.

The ANZ Bank statements confirmed withdrawals on the Company’s account No.14274 on few occasions, while the Westpac Bank, the Bred Bank and the National Bank of Vanuatu confirmed deposits made to their banking institutions on few occasions into the Defendant’s personal account and by the Defendant herself.

During the interrogations with the police at the police station, the Defendant voluntarily admitted and confirmed the allegations put against her by the complainant except the funds that she deposited into the financial institution of the Bred Bank which she said the money was from her personal savings rather than the Company’s funds.

The relevant laws governing the above offences are section 140 of the Penal Code Act [CAP.135] for forgery and section 125(a) of the Penal Code Act [CAP.135] for theft. They provide as follows:

"Prohibition of Forgery:

"140. No person shall commit forgery.

Penalty: Imprisonment for 10 years."

"Theft:

125. No person shall cause loss to another-

(a) by theft

Penalty: Imprisonment for 12 years."

The statutory maximum of the penalties imposed by the legislature for offences of forgery and theft indicate that they are serious offences of dishonesty.

The prosecution submissions referred to the Court of Appeal Judgment in Gamma v. Public Prosecutor [2007] VUCA 19; Criminal Appeal Case 08 of 2007 (30 November 2007). In the Gamma case, the Defendant pleaded guilty to 148 counts of theft of 18 million Vatu. The offending occurred over a period of about three and half years. The Court of Appeal stated that when the aggravating and mitigating circumstances are moderately and objectively weighed, a starting point in this case should have been as submitted by the prosecution of 7 to 8 years imprisonment.

Apart from the differences in respect to amount stolen (11,000,000VT in the present case) and the length of the period of offending (8 months in the present case), the Gamma Case and the present case have virtually similar circumstances.

I consider whether or not a compensation sentence is appropriate in this case. I read and consider the report dated 4 February 2010. The report reveals that you committed these offences to boost your ego after a relationship break up. In addition, it reveals also that you have used the money stolen to elevate your social standing and used some part of the money stolen for your own financial profit. A compensation report was also provided to the Court on 8 March 2010. The relevant part of the compensation report is reproduced below:

"Present Status of Co-offenders

Mrs Meliana Samuel reported that she was the only one who transferred the money; she admitted that she did not think of the consequence that time. Mr Barry also confirmed by stating "she is a smart woman and transferring money was one of her responsibility."

Compensation Sought

Mr Barry confirmed the total of 11 million Vatu. Mr Barry stated that he will continue to request his lawyer to file a civil case later on. He also stated that he has no further comments except to let the Court to deal with the matter.

Mrs Meliana Samuel advised the writer that on November and December she had made two payments to South Sea Shipping, with a total of 200,000 Vatu. When seeking confirmation from South Sea Shipping Management, Mr Barry Amos stated that they (the firm) only received 100,000 Vatu. No compensation was paid in January 2010.

Offender Capacity to Provide Compensation

Mrs Meliana Samuel has mortgage of a land and an uncompleted apartment at (Bladinieres Estate’s) and the building is under loan with the Westpac Bank.

1. The Property at Bladinieres Estate: This is a partially completed 5 x 2 bedrooms (sited valuation) apartment building with a value at 13 July 2009 of 18,500,000 valuated report sited. The loan balance against this property as at 31 December 2009 was 18,928,647. This would appear therefore to have negative equity of 428,647 Vatu. Construction work on this property has stopped. No details have been made available concerning repayments.

2. Additional to house loan, Mrs Samuel claims to own a bus with an outstanding loan of 500,000. This has not been confirmed and Mrs Samuel claims to be paying 72,000 VT a month in repayments.

3. Land at Teouma – valued at 1,600,000 Vatu. Mrs Samuel claims there is a loan of 500,000VT with Westpac against this property. No evidence of loan or repayment was supplied by Mrs Samuel.

4. Mrs Samuel claims to own fishing boat, self valued at 900,000 Vatu. However Mrs Samuel did not produce any evidence of ownership or value.

5. Mrs Samuel is currently employed at South Pacific Cruises Ltd and her fortnightly income is 35,000, from this.

6. Mrs Samuel states she has 109,755 on a fixed deposit. Statement was provided supporting this claim."

During your sentencing and upon the Court’s queries, the Court is informed by your counsel that the complainant Company, South Sea Shipping Limited has filed a Supreme Court civil claim against you in South Sea Shipping Limited v. Meliana Civil Case No.178 of 2009 seeking among other matters, compensatory damages of the money your have stolen which is the subject of the present criminal case No.124 of 2009.

I decline to make a compensation order for the simple reason that the complainant Company in this case has already filed a Supreme Court claim which is now pending in the Supreme Court in Civil Case No.178 of 2009 referred to above.

When I sentence you, I apply the rational guideline of Gamma Case. The starting point of your sentence is 6 years imprisonment. This term will be increased to reflect the following aggravating factors:

1. The offending was planned and premeditated;

2. The offence of forgery and theft were repetitive.

3. The Defendant is a senior staff and is a highly trusted staff in the Company.

4. There was a serious breach of trust.

The term of imprisonment of 6 years is increased by 2 years to reflect the aggravating factors, which is 8 years.

In mitigation, your counsel submitted the following:

• You pleaded guilty at the first available opportunity given. A plea of guilty enables the Court to deduct ⅓ of the sentence imposed.
  
• You are a first time offender and you have no previous criminal convictions record.
  
• You cooperated will with the police and make full admissions on the allegation that was put against her.
  
• You are remorseful and you promise not to commit the same offence or any other offences.
  
• You are the only bread winner for your families.
  
• You have repaid VT200, 000 to the complainant and you intended to pay 100,000 Vatu month until the amount misused is fully paid.
  
• You have two (2) young children of six years and 4 months old. They are under your care and protection and custody.
  

Upon considering and balancing the aggravating factors and the mitigating circumstances, and cross-referencing them, the aggravating factors outweighed the mitigating factors. Your sentence is reduced to 4 years imprisonment accordingly.

Finally, I consider whether or not I should suspend your imprisonment term of 4 years. I consider your character and personal history and the circumstances of your offending and the fact that you are the mother of two (2) young children of six and of four months old. None of these circumstances taken in isolation or together would justify a suspension of your sentence of imprisonment. I decline to suspend your imprisonment term of 4 years. Upon the Court’s queries, the Court is informed by the Probation Officer present in Court that there is enough space in custody for you to look after you 4 months old child. Your child would not be affected by your custody.

You are ordered to serve 4 years imprisonment with immediate effect.

You have 14 days to appeal if you are not satisfied with your sentence.

DATED at Port-Vila this 19th day of March 2010

BY THE COURT

Vincent LUNABEK
Chief Justice