Public Prosecutor v Nimbal [2012] VUSC 175; Criminal Case 32-12 (22 August 2012)

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

Criminal Case No. 32 of 2012

PUBLIC PROSECUTOR

VS.

JEAN MARK NIMBAL
BIONI VARAVARA
ANDRE RINGIAU
BILL DAVID

Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Mr Parkinson Wirrick for Public Prosecutor
Miss Jane Tari for the Defendants

Date of Hearing of Submissions: 3rd July 2012
Dates of Sentence: 21st and 22nd August 2012

SENTENCE

1. The four defendants in this case are charged together jointly and severally as follows –

(a) Jean Mark Nimbal

(i) 7 Counts of Unlawful Entry contrary to section 143 of the Penal Code Act [Cap.135] (the Act) under Counts 1, 4, 6, 7, 9, 14 and 17.

(ii) 6 Counts of Theft contrary to section 125(a) of the Act under Counts 2, 5, 8, 10, 13 and 15 initially but three of those counts were withdrawn. (Counts 5, 10 and 15).

(iii) 1 Count of Aiding Unlawful Entry contrary to section 30 in conjunction with section 143 of the Act.

On 23rd July 2012 the defendant pleaded guilty to all the charges laid against him except the three counts withdrawn in regard to the theft charges. He had a total of 11 counts to which he pleaded guilty.

(b) Bioni Varavara

(i) Aiding Unlawful Entry contrary to section 30 in conjunction with section 143 of the Act under Count 12.

(ii) Four Counts of Theft contrary to section 125(a) of the Act under Counts 2, 5, 13 and 15. Three counts (counts 2, 5 and 13) were however withdrawn and only Count 15 remained.

(iii) Four Counts of Unlawful Entry contrary to section 143 of the Act under Counts 1, 4, 14 and 17. However Count 4 was withdrawn prior to plea being entered.

(iv) Two Counts of Driving Away Vehicle Without Consent contrary to section 52 of the Road Traffic (Control) Act Cap. 29. (The RTC Act) under Counts 3 and 16.

On 23rd July 2012, the defendant pleaded guilty to the remaining charges which were Counts 1, 3, 12, 14, 15, 16 and 17 a total of 7 counts.

(c) Bill David

(i) 1 Count of Unlawful Entry contrary to section 143 of the Act under Count 11.

(ii) 1 Count of Theft contrary to section 125(a) of the Act, under Count 13. This charge was however withdrawn by the Prosecutions.
On 23rd July 2012, the defendant pleaded guilty to one Count of Unlawful Entry (Count 11).

(d) Andre Ringiau
This defendant is a serving detainee but he has escaped from lawful custody and remains at large. The Prosecutions has sought a warrant of his arrest and it has been issued. His case will remain pending his arrest.

2. The facts show these offendings were committed by these defendants in the period from 9th to 20th May 2012 inclusive as follows –

(a) 9th May 2012 at 2 O'clock in the morning at Santo East School, Jean Mark Nimbal (JMN), Bioni Varavra (BV) and Andre Ringiau (AR) entered the office after JMN and AR had broken down the door with a pinch bar. They entered and damaged a filing cabinet looking for valuables to steal. JMN and AR stole a carton of lollies, a carton of cream biscuits, a screw-driver set, an exercise book and VT500 cash. (Counts 1 and 2).

(b) Earlier at about 1 O'clock a.m on 9th May, the same three defendants went to Mr Caleb Wilkin's residence at Red Corner, Luganville. JMN and AR broke the fly screen and AR gained entry into the house where he stole the keys to a G-Vehicle Toyota Hilux G 709, a TVL Alcatel Mobile Phone, a red shirt, a USP cable and VT1.500 cash. They then pushed the vehicle out onto the tar-sealed road and BV drove the vehicle out and they headed for Santo East School as their next target. (Counts 3, 4 and 5).

(c) On the night of 11th May 2012, JMN entered the school yard and offices of the Sarakata School and gained entry through the wire fence. He then removed louvers from a window, bent the window screen and gained entry with intention to steal. (Count 6).

(d) Earlier on the night of 10th May 2012, JMN and AR entered the store belonging Ps Silas Fatu by using a pinch bar they broke the two looks of the door. JMN and AR then stole oxford tin meat, tins of fish, tuna and biscuits to the value of VT30.000. (Counts 7 and 8).

(e) In the early hours of 13th May 2012 JMN and AR gained entry into Dr. Augustino Perez's roomat the Natapoa Motel by cutting the wire fence and breaking the window glass. AR then entered and stole two mobile phones, a camera, an ATM Card, a driver's license and VT25.000 cash (Count 10).

(f) In the night of 15th May 2012, Bill David (BD) and AR entered in Simeon Aru's office at Side River by cutting the wire fence and using a pinch bar to break open the window with intent to steal. JMN and BV assisted by keeping watch. AR then entered and stole a lap-top computer, a mobile phone, and VT135.000 in cash. (Counts 11, 12 and 13).

(g) In the early hours of 20th May 2012 JMN, AR and BV entered into Daniel Ryan's house at Second Canal, Luganville by cutting the wire fence with pliers and breaking open the door lock. They entered and stole alcoholic drinks, a memory stick, a pair of sandals, some food from the fridge, 12 tins of beer, three knifes, VT48.500 in cash, AU$ 200.00, and two mobile phones. BV then found and took the vehicle keys of Mr Ryan's Mitsubishi truck and drove it away without the owner's consent. (Counts 14, 15 and 16).

(h) In the same night or early hours of 20th May 2012 JMN, AR and BV entered into Yves Lau's residence by cutting the wire fence, breaking the window screen and removing louvers with intention to steal. (Count 17).

(i) On that same date, being the early hours of 20th May 2012, AR unlawfully killed a dog belonging to Mr Lau with a stone. (Count 18).

3. All those facts are conceded by the three defendants who have entered their pleas.

4. The penalties laid down in the relevant laws indicate these are serious offences. Under section 125(a) of the Act, Theft attacts a maximum penalty of 12 years imprisonment. Unlawful Entry under section 143 of the Act carries a maximum penalty of 20 years imprisonment when committed in a place used for human habitation, and 10 years imprisonment when committed in another place not used for human habitation. Under the Road Traffic (Control) Act Cap. 29, section 53 provides for the penalties for taking and driving away a vehicle without the owner's consent to be a fine not exceeding VT100.000 or to imprisonment not exceeding 1 year, or to both such fine and imprisonment.

5. All three defendants are not new to the Court. Bill David was convicted in 2008 for unlawful entry and theft in Criminal Case No. 47 of 2007. He was convicted again by this Court on 16th August 2012 in Criminal Case No. 36 of 2012 for unlawful entry (4 Counts) and theft (3 Counts). Those offences were committed by him in April 2012 in a space of about 1 month. He was sentenced to 7 years imprisonment as a concurrent sentence.

Jean Mark Nimbal was convicted by this Court in Criminal Case No. 26 of 2012 to 5 years imprisonment concurrent for two Counts of Aiding Theft. Further, in Criminal Cases No. 18, 19, 20, 21, 22, 23, 24 and 27 of 2012 Jean Mark Nimbal was convicted for unlawful entry (5 Counts) and Theft (5 Counts) to 6 years imprisonment.

Bioni Varavara was convicted for unlawful possession of cannabis in Criminal Case No. 13 of 2012 to 1 month imprisonment to be served consecutive to the sentences imposed for his offendings in this case.

6. The Court has seen and noted the pre-sentence reports filed by the Probation Service on behalf of these 3 defendants. They contain the same personal information about each of the defendants. One of the notable information common to all of them is that they all come from families where parental relationships between husbands and wives have broken down resulting in separations. Those are regrettable factors. When the Court considers these factors against the aggravating features as submitted, it is the view of this Court that the only appropriate penalties to be imposed are to be custodial sentences. These offendings involved degrees of careful thinking and planning by the defendants. There were significant losses to all victims of properties stolen or damaged that cannot be recovered or made good by the defendants. The offendings were committed by more than one defendant acting together and in more than one place per night, and on separate occasions at separate places which were mostly used for human habitation and activities. Offendings were repetitive.

7. In assessing sentences, the Court has considered the principles established in the following cases as submitted by Counsel:-

(a) Heromanley v. Public Prosecutor [2010] VUCA 25.
(b) Kalfau v. Public Prosecutor [1990] VUCA 9.
(c) Public Prosecutor v. Killion & Others [2004] VUSC 17.
(d) Public Prosecutor v. Gere [2011] VUSC 298.
(e) Public Prosecutor v. Warsal [1996] VUSC 17.

In view of these authorities sentences of a starting point of 6 years imprisonment for unlawful entry and theft is generally accepted. There will be uplifts for aggravating features and general reductions for two relevant mitigating factors being guilty pleas and good cooperation with Police. Taking account of the totality principle so that sentences do not have crushing effects on these young men, concurrent sentences will be ordered.

8. Having said all that, the Court now sentences the three defendants in the following manner –

(a) Jean Mark Nimbal

(i) For seven Counts of Unlawful Entry, you are sentenced to 7 years as the starting point on each Count concurrent. There is an uplift of 3 years for aggravating features bringing the total up to 10 years imprisonment. However, there is a reduction of 3 years for guilty pleas and good cooperation with the police bringing the sentence back down to 7 years imprisonment, as a concurrent sentence.

(ii) For three Counts of Theft, you are sentenced to a starting point of 7 years imprisonment on each Count. There will be no uplift and no reduction as these are sufficiently done in relation to the Unlawful Entry charges. I order however that these 7 years be made concurrent to your sentence for the Unlawful Entry charges.

(iii) For Aiding Unlawful Entry, there will be no separate sentence as this is adequately covered within your Unlawful Entry and Theft charges.

In summary, your total punishment for your offendings in this case (Criminal Case No. 32 of 2012) is 7 years imprisonment concurrent.

In Criminal Case No. 26 of 2012 you were sentenced to a concurrent term of 5 years imprisonment.

In Criminal Cases No. 18, 19, 20, 21, 22, 23, 24 and 27 you were sentenced to a total concurrent sentence of 6 years and 6 months imprisonment.

All the offendings in which you were involved took place from 9th to 20th May 2012 about one month after your last offending in April 2012 for which you were charged, convicted and sentenced in Criminal Case No. 26 of 2012. Under those circumstances it has become necessary to consolidate these sentences so that in all three separate cases or proceedings, all the sentences imposed will run concurrently. And I so order. In effect you will serve a total concurrent sentence of 7 years plus 6 months consecutive term of imprisonment.

(b) Bioni Varavara

(i) For Aiding Unlawful Entry there will be no separate penalty imposed as this is adequately covered within your Unlawful Entry charges.

(ii) For 3 Counts of Unlawful Entry, you are sentenced to 6 years imprisonment as the starting point on each Count. There will be an uplift of 2 years for aggravating features. For mitigating factors such as guilty pleas and good cooperation there will be a general reduction by 3 years bringing your sentence down to 5 years imprisonment.

(iii) For 1 Count of Theft, you are sentenced to 6 years imprisonment. There will be no uplift. But there is a reduction of 2 years for guilty pleas bringing the sentence down to 4 years imprisonment. I order that these be served concurrently with your 5 years sentence for the unlawful entry charges.

(iv) For 2 Counts of Taking and Driving Away Vehicles Without Consent, you are sentenced to 5 months imprisonment on each Count to run concurrently. I further order that these 5 months concurrent sentences be served consecutive to your 5 years and 5 months concurrent sentences for unlawful entry and theft charges. I further order that your 1 month imprisonment sentenced imposed in Criminal Case No. 13 of 2012 be also served consecutively after your 5 years and 5 months sentences imposed for your offendings in this case. In total you will serve the total sentences of 5 years plus 6 months consecutive imprisonment terms.

The Court notes that you have not been charged with an offence of driving without a valid driver's license. In light of this, one can assume you have a driver's license to permit you to drive on those two occasions. And if you do have a license, then you must be 18 years old to qualify under section 45 of the Road Traffic (Control) Act Cap. 29. That is the minimum age. 14 years old do not drive motor vehicles. They can only ride bicycles. All this is said because there is suggestion that you are only 14 years old. But the Court has rejected that submission in sentencing you in the drugs case in Criminal Case No. 13 of 2012. The view of the Court expressed in that sentence also apply to you in this case.

(c) Bill David

And finally for you Bill David, you were not in Court on 21st August 2012 and your sentence was deferred to 22nd August 2012. Much has been said by this Court to you in Criminal Cases No. 26 and 36 of 2012. Those views apply to you for your offending in this case. For the only charge of unlawful entry, you are sentenced to 6 years imprisonment as the starting point. There will be an uplift by 3 years for the aggravating features bringing the sentence to 9 years imprisonment. However, there is a general reduction by 4 years imprisonment bringing the sentence back down to 5 years imprisonment. I order that these be served concurrently with your sentences in Criminal Case No. 36 of 2012. The offendings in this case occurred within 16 days of your last offending on 29th April 2012 thus warranting that all sentences be consolidated. Your total and overall sentence for all these cases is 7 years imprisonment commencing on 23rd July 2012.

9. Those are the sentences of the Court. Your commencement dates will be specified in your respective Warrants of Commitment.

10. Each of you has a right of appeal within 14 days if you so choose.

DATED at Luganville this 22nd day of August 2012.

BY THE COURT

OLIVER A. SAKSAK
Judge