Public Prosecutor v Norman [2010] VUSC 60; Criminal Case 11 of 2010 (21 May 2010)

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

Criminal Case No. 11 of 2010

PUBLIC PROSECUTOR

V

JIMMY ERICK NORMAN
KARIO YAWIKO
GERALD MARCEL
FABRICE SAKSAK
ISHMAEL MATHIAS
EDMOND SIMEON
MARCO RICHARD
PETRO ANDREA
NIXON SARI
MARY TALO

Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Mrs Kayleen Tavoa – Public Prosecutor
Mr Henzler Vira for the Defendants

SENTENCE

1. Out of the 10 defendants charged in this case, 9 of them pleaded guilty to charges of unlawful entry, theft, damage to property and receiving property dishonestly obtained on 6th April 2010. Only one defendant, Mary Talo pleaded not-guilty to one charge of receiving property dishonestly obtained, and her case is awaiting trial hearing on 26th May 2010.
   
2. The other 9 defendants were charged as follows:-
   
   • (a) Jimmy Erick Norman – Unlawful Entry – Section 143(1) PCA
     

- Theft – Section 125(a) PCA; and

- Damage to Property – Section 133 PCA.

(b) Kario Yawiko – Unlawful Entry – Section 143(1) PCA; and

- Theft – Section 125(a) PCA.

(c) Gerald Marcel – Theft – Section 125(a) PCA.

(d) Fabrice Saksak – Theft – Section 125(a) PCA.

(e) Ishmael Mathias – Theft – Section 125(a) PCA.

(f) Edmond Simeon – Theft – Section 125(a) PCA.

(g) Marco Richard – Theft – Section 125(a) PCA.

(h) Pedro Andrea – Receiving Property Dishonestly Obtained – Section 131 PCA.

(i) Nixon Sari – Receiving Property Dishonestly Obtained – Section 131 PCA.

3. It was alleged that these defendants were involved in offences relating to, and as a result of break-and-enter at a ware house, a mechanic workshop and a container belonging to the Northern District Hospital on 20th January 2010. Jimmy Erick Norman used a pinch bar to cut the security wire and gaining access to the container by using a lighter to burn the lock and then unlocking it with a pinch bar. Upon entry, he stole 2 tents, 2 tarpaulins and 1 can of paint. A complaint was made to the police on 24th January 2010. Upon investigation, Police arrested defendant Jimmy Erick Norman and subsequently Marco Richard and Kario Yawiko. On March 2010, Police also arrested Fabrice Saksak, Ishmael Mathias and Edmond Simeon. Defendants Pedro Andrea and Nixon Sari were also apprehended and questioned. They admitted to receiving stolen property.
   
4. The defendants conceded those facts.
   
5. As such, the Court entered convictions against all the 9 defendants as charged.
   
6. In sentencing the defendants, the Court had regard to the sentencing submissions by the Public Prosecutor and by the defence counsel. The Court also had regard to the Same Day Reports submitted by the Probation Office on behalf of each 9 defendants.
   
7. The defendant with high degree of culpability was Jimmy Erick Norman. He committed unlawful entry, theft and damage to property. He damaged government properties and caused loss by theft. He lured other defendants to join him. There appears to be little or no remorse at all by any of them about what they did.
   
8. On the mitigating factors, the Court took into account that Kario Yawiko, Pedro Andrea, Ishmael Mathias, Edmon Simeon, Marco Richard and Nixon Sari are first-time offenders. They all pleaded guilty at the first opportunity.
   
9. Jimmy Erick Norman has previous convictions. He had a suspended sentence of 6 months imprisonment for unlawful entry and theft in 2009 which has not yet expired.
   
10. Defendant Gerald Marcel has a string of previous convictions beginning in 2003 to 2006 for offences of unlawful entry, theft, damage to property, receiving stolen property, aiding and abetting and escape from lawful custody.
    
11. Fabrice Saksak also had a previous conviction in 2003 for unlawful entry and theft.
    
12. Having assessed sentences in light of all submissions made, the appropriate sentences the Court imposed on the 9 defendants are as follows:-
    
    • (a) Jimmy Erick Norman
      
      • (i) Suspended sentence of 6 months imprisonment is activated and will be served immediately.
        
      • (ii) For unlawful entry – A sentence of 12 months imprisonment.
        
      • (iii) For theft – A sentence of 12 months imprisonment.
        
      • (iv) For damage – A sentence of 6 months imprisonment.
        

These three terms will be served concurrently so that in effect the defendant will serve 12 months imprisonment. However, these 12 months will be consecutive to the 6 months for the previous sentence, making a total term of 18 months imprisonment.

(b) Gerald Marcel

For theft, he will be imprisoned for 12 months.

(c) Fabrice Saksak

For theft, he is sentenced to 12 months imprisonment suspended for 2 years with supervision under Section 58 G of the Penal Code Act (the Act).

(d) Ishmael Mathias

For theft, he is sentenced to 6 months on supervision under Section 58 F of the Act.

(e) Edmond Simeon

For theft, he is sentenced to 6 months on supervision under Section 58 F of the Act.

(f) Marco Richard

For theft, he is sentenced to 6 months on supervision under Section 58 F of the Act.

(g) Pedro Andrea

For receiving stolen property, he is sentenced to 6 months on supervision under Section 58 F of the Act.

(h) Nixon Sari

For receiving stolen property, he is sentenced to 6 months on supervision under Section 58 F of the Act.

13. For those sentenced to imprisonment, their terms will have commenced on 21st May 2010. They are entitled to parole after having served up to half of their sentences.
    

DATED at Luganville this 21st day of May 2010.

BY THE COURT

OLIVER A. SAKSAK
Judge