Public Prosecutor v Kelep [2022] VUSC 125; Criminal Case 1097 of 2022 (2 August 2022)

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

Criminal Case No. 22/1097 SC/CRML

BETWEEN:	Public Prosecutor
AND:	Ronnie Kelep Defendant

Date of PLEA: Date of Sentence:	16th June 2022 2nd August 2022
Before:	Chief Justice,Vincent Lunabek

In Attendance:

Mr Lenry Young for Public Prosecutor Mr Henzler Vira for Defendant

SENTENCE

1. Defendant Ronnie Kelep, you appear for sentence today having being pleaded guilty to one count of misappropriation contrary to section 125 (b) of the Penal Code between 20^th and 2^nd March 2020.
   
2. Charlie Rokrok is the complainant and has lodged his complaint to the police against you on 26^th June 2020.
   
3. The complaint was that sometimes in the late 2009 and early 2010, one James Nwango, a former Member of Parliament, made a cheque payment of VT 1,000,000 to Charlie Rokrok, the complainant. That money was given to you instead as you had asked for it by deceiving them that your old man (referring to the complainant) is very ill and he needed that money to finance his hospital expenses.
   
4. The money (VT 1,000,000) was entrusted to you for return to the complainant. It is a gratuity payment for the complainant for being a former Member of Parliament.
   
5. You have admitted taking and using the complainant’s money without the complainant’s knowledge. You have apologized for your actions stating that you will refund that money you had spent the money for your own personal use and also used the money for the funeral expenses for your late father Lency Kelep.
   
6. You had actively involved in the process of cashing the money from the bank.
   
7. You did not yet refund the money. The complainant wants his money bank.
   
8. You are not a first time offender, you have a previous conviction for careless driving. For this offending, I treat you as a first time offender.
   
9. The maximum penalty of misappropriation is 12 years imprisonment. It is a serious offence.
   
10. The following aggravating features relating to the nature of offending and your culpability in the commission of the offence can be reflected as follow:-
    
    • - The total value of the money misappropriated was VT 1,000,000 and cannot be said as small;
      
    • - There is no reparation. The money has not been refunded to the complainant although you had indicated to refund the victim when you were first cautioned by Police on 17^th July 2012;
      
    • - Personal use of the money- you used the money for your own use and paid the funeral expenses of your late father Lency Kelep;
      
    • - It is a .. loss on the victim into your greedy hands;
      
    • - It is constituted a breach of trust. You are related to the victim as uncle;
      
    • - There is some degree of planning in the offending which consisted of your active involvement in the process of cashing the money from the bank; and
      
    • - There was deception involved in that you deceived Mr James Ngwango into handing over to you the money by deceiving him that the victim is very ill and he needed that money to finance his hospital expenses.
      
11. The prosecution refers to the following case authorities:
    
    • - PP vs Mala [1996] VUSC 22;
      
    • - Apia v PP [2015] VUCA 30;
      
    • - PP v Kaltenikia[2018] VUSC 220
      
12. The prosecution submitted that a starting point range of 17 months imprisonment is appropriate.
    
13. The prosecution said you are entitled to some discount for your early guilty pleas and the delay taken to prosecute your case. The prosecution submitted for an end sentence of 10-13 months imprisonment. If the Court suspended your imprisonment terms, the suspension will be for 2 years and an order for reparation to the victim as you have the financial capacity.
    
14. Your lawyer recognized the maximum sentence for this offending of 12 years imprisonment is a serious offence coupled with aggravating features and the case authorities referred to by the prosecution.
    
15. Your lawyer submitted for the following mitigating features:-
    
    1. You are 52 years old, and are employed as the second political appointee to the Ministry of Trades;
       
    2. Your family is dependent on you;
       
    100. You have a good relationship with your family and your community;
         
    4. You have skills in joinery and you have an ambition in life to own a property and a small business of your own in the future;
       
    5. You have made a reconciliation;
       
    6. You are remorseful and you said you have learnt a lesson after the offending and that you will stay out of problems;
       
    7. You cooperated with the police and you admitted the offence;
       
    8. You are a first time offender;
       
    9. You pleaded guilty at the first time opportunity given to you;
       
    10. You had performed a custom reconciliation ceremony to the victim.
        
16. Your lawyer submitted a starting point of 16 months imprisonment. A 1/3 discount to your early guilty plea. Some allowances will be given for your custom ceremony reconciliation and delay in the prosecution of your case.
    
17. Your lawyer submitted an end sentence of imprisonment shall be suspended for 2 years and an order for reparation of the repayment of VT 50.000 monthly until the amount is completed.
    
18. I have assessed the maximum sentence of 12 years imprisonment for this offending as a serious offence. This is coupled with your culpability in the commission of this offence in March 2020 based on the case authorities referred to by the prosecution. I set 12 months imprisonment as a starting point. I adopt the aggravating factors set out by the prosecution above. The starting point of 12 months imprisonment is uplifted to 16 months imprisonment as the total sentencing for this offending.
    
19. In mitigation I give you a discount of 25% for your guilty plea. Your total sentence is this reduced to 12 months imprisonment.
    
20. I give you another discount of 2 months for your custom reconciliation ceremony to the victim. Your total sentence is further reduced to 10 months imprisonment. I finally give you an additional allowance to take into account of the delay of 9 years in the prosecution of your case (from the filing of the complaint to the police and the laying of the charge with the offence in 2021). I allow 2 months. Your total sentence is further reduced to 8 months imprisonment and that is your end sentence, 8 months’ imprisonment.
    
21. I explore the possibility for you to repay the victim. The pre-sentence report indicated you have the financial capacity to do so. You are employed and you make in income of 269, 044 vatu per month. You stated you have a monthly expenses (including rentals) of vatu 85,790.
    
22. I exercise my discretion to suspend your imprisonment terms of 8 months for a period of 2 years. You must be of good behavior and keep the peace. You must not re-offend. If you re-offend during the 2 years suspension, you will be dealt with according to law. And your sentence of 8 months imprisonment may be re-activated.
    
23. In addition, I make an order that you repay the victim by instalments of 50,000 vatu per month until the total amount of vatu 1,000,000 is totally repaid. You shall make the first repayment on the 15^th of August 2022.
    
24. You have 14 days to appeal against this service if you are dissatisfied with it.
    

DATED at Port Vila this 2^nd day of August, 2022

BY THE COURT

...........................
Chief Justice, Vincent Lunabek