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Supreme Court of Vanuatu |
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IN
THE SUPREME COURT
OF
THE REPUBLIC OF
VANUATU
(Criminal
Jurisdiction)
Criminal
Case No.298 of 2002
SC No. 18 of
2002
PUBLIC PROSECUTOR
v.
MOSES
KILTON
PEDRO
OBED
WILLIE
TIEN
PHILIMON
SUA
KILTON
BULE
ELIZABETH
BULE
JOSEPH
SHEM
Coram: Mr Justice Oliver
A. Saksak Ms Cynthia Thomas -
Clerk
Counsel: Ms Linnes Moli for
Public Prosecutor
Mr Hillary Toa for
the Defendants
Mr Willie Jack Kapalu
for Willie Tien
Date of Sentence:
19th
June, 2003.
SENTENCE
After hearing pleas in
mitigation by both Mr Toa and Mr Kapalu in respect of each of the defendants,
and after hearing antecedents
and submissions in response from Ms
Moli.
And having considered those
mitigating factors in the light of the nature of the offences committed and the
effect of the commission
of those offences on the community at large, I imposed
the following
sentences-
1.
Moses Kilton
A young man of 23
years and married with two children of 5 and 2 years old respectively. His
previous conviction was recorded by the
Magistrates Court on
12th
May, 2001. He was jailed for 10 months for offences of unlawful entry and theft.
This indicates that this defendant committed further
offences of the same nature
only 4 months after his release from
custody.
The aggravating factors
of the offences of unlawful entry, intentional assault and robbery are that the
victim was assaulted, blindfolded,
tied with hands behind his back, left to die
helpless in his blood on his bed, his money in excess of VT2 million in cash and
other
items were taken from him. The offences were done in a concert but they
were done during the night. He went away so that he could
not be noticed or
caught to his home island with part of the money stolen and went on a shopping
spree. He was seen shopping on ships
for cargo to start a village retail store
with VT5.000 Notes. Consistent with the evidence of the victim that almost all
the money
stolen were in VT5.000 Notes. He spent large sums of money on
bride-price, transport and shared some of it with the defendants. He
was
unemployed, only just being out of
jail.
Under section 143(1) of the
Penal Code Act [CAP 135] (the Act) unlawful entry into a dwelling house with
intent to commit an offence carries a maximum of 20 years imprisonment.
Under
section 107© of the Act intentional assault causing injuries of a permanent
nature carries a maximum of 5 years imprisonment.
Under section 137 of the Act
robbery carries a maximum of 25 years imprisonment. These are serious offences.
Investors to and in
Vanuatu should be allowed to do business to create job
opportunities for the unemployed persons of this country in peace without
the
fear that at the end of a hard days labour they go home and find they are
suddenly attacked, robbed and left half-dead on their
beds. The effect of the
commission of these offences if allowed to continue will seriously affect the
economic and social situations
in this country. I am asked to be lenient on this
defendant and Pedro Obed, the co offender in this case. But this is not a case
that this court should be lenient. Rather the Court must impose prison sentences
to deter the defendant and others from committing
these offences, and to protect
the business community as well. Under those circumstances Moses Kilton is
sentenced to-
(a) Court 1 Unlawful Entry - section 143 PCA= 5 years imprisonment.
(b) Count 2 Intentional assault - section 107 (c) PCA= 5 years imprisonment.
(c) Count 3 Robbery - section 107(c) PCA= 5 years imprisonment.
These
terms of imprisonment run concurrently making a total of 5 years. This man has
been remanded in custody for 10 months since
his apprehension by police. I order
that these 10 months be deducted accordingly from his 5 years concurrent
sentence.
Pedro
Obed
2. Another young
man of 24 years of age and is married with 2 young children. He was Moses
Kilton's accomplice. Being the ex-employee
of LCC store (the victim) and knowing
all about the premises, he made the plans which was aborted on one occasion. On
the second
occasion the plan became successful with the counsel and assistance
of Willie Tien. Like Moses Kilton he is charged with the same
offences of
unlawful entry, intentional assault and
robbery.
He has a string of
previous convictions in the Magistrate's Court showing that on 5th December 2001
he was imprisoned for 3 months
and 3 weeks for three counts of unlawful entry
and theft. Again on 21St October 2001 he was sentenced to imprisonment for 9
months
concurrent for unlawful entry and theft. Then again on the same date he
was sentenced for unlawful entry and theft to a term of 7
months imprisonment.
Finally on 24th March, 2003 he was sentenced to 3 weeks imprisonment for having
escaped from lawful custody.
He is currently serving these prison terms. From
his record it appears that this defendant has become a habitual offender. I am
asked
to be lenient on him but it is my view that the community would be safer
without him enjoying such liberty whilst encroaching upon
the liberty of others,
especially those who sweat for their money. The sum of VT740.000 all in VT5.000
Notes were recovered by the
police in his house on admission. Other items
directly linking to the offences committed at Christopher Lo's residence were
recovered
from this defendant's house. Under these circumstances I sentence
Pedro Obed to imprisonment as follows -
(a) Count 1 - Unlawful entry - section 143 PCA= 5 years imprisonment.
(b) Count 2 - Intentional Assault - section 107(c)= 5 years imprisonment.
(c) Count 3 - Robbery - section 137= 5 years imprisonment.
These
sentences will run concurrently making a total of 5 years imprisonment. But
these sentence will be served consecutively to or
with his current terms of
imprisonment. However like Moses Kilton the period of 10 months spent in custody
awaiting trial are deducted
from the 5
years.
Willie
Tien
3. He is 73 years
told and suffering from a physical condition. His medical certificate has been
produced. He has put up surety for
bail in the sum of VT10.000. He is
maintaining a son at high school. I am asked to be lenient in sentencing him. He
has no previous
record of conviction. He was charged with Count 4 of inciting
and soliciting unlawful entry, Count 5 with inciting and soliciting
robbery and
Count 6 for receiving stolen property in the sum of VT35.000. He admitted
receiving moneys from Moses Kilton. He returned
a box containing bracelets which
was identified as one of the items stolen from the victim's cash box. The
aggravating factor in
regard to this defendant is that being an elderly man whom
young men should turn to for wisdom, he counselled them and encouraged
them to
commit criminal offences which are very serious. He benefited directly from the
proceeds of those criminal activities. In
law he is as guilty and liable as the
principal offenders and should be sentenced as such. (sections 30 and 32 PCA).
The Court views
his part in the omission as serious and in order to deter others
in his position and age from doing what he did the defendant deserves
a jail
sentence. Accordingly I impose a jail term but due to his age and medical
condition I will suspend his sentences. His sentences
are as
follows:-
(a) Count 4 - Inciting and soliciting unlawful entry- section 30 & 143 PCA= 5 years imprisonment.
(b) Count 5 - Inciting and soliciting robbery - section 30 & 137 PCA = 5 years imprisonment.
(c) Count 6 - Receiving stolen property - section 131 - No imposed but a restitution order will be issued.
The
terms of imprisonment for counts 4 and 5 are suspended for a period of 2 years,
and they are to be served
concurrently.
Restitution
Order
I order the defendant to
repay the amount of VT35.000 to the victim of this case, Mr Christopher Lo. He
has paid surety of VT10.000.
He now forfeits that sum. He has a balance of
VT25.000 to pay which he must repay within 3 months (before
19th
September, 2003) from the date of this sentence. All payments must be made to
the Court Registry in Luganville,
Santo.
Failure to pay will result
in his imprisonment for 1 week for every Vt1.000 which remains unpaid. This
sentence is imposed pursuant
to section 54 of the
PCA.
4.
Kilton
Bule
5.
Elizabeth Bule
These are the parents of Moses Kilton. Kilton Bule was charged with receiving stolen money from his son to the amount of VT100.000. His wife Elizabeth also was charged with receiving stolen property in the sum of VT10.000. They both live at Tisman village on Malekula making a living on subsistence farming. Both defendants have no previous convictions or record. I am asking to be lenient on them as their actions were not premeditated in any ways. Kilton Bule is 55 years old. His wife is 50 years old. They have 4 children, one being Moses Kilton. Both of them have medical conditions. Whilst I take those mitigating factors into consideration, as elderly parents, like Willie Tien they are the ones charged with the moral duty to show their children the right way to live. As parents who appear in the same proceedings which involves commission of criminal offences with their own son, it should be a crying shame for them. It should reveal a clear failure on their part to play their parental roles right. And that is enough for this Court to consider imposing prison sentences to deter elderly parents from getting involved in any criminal activities that their issues get themselves into. They both well knew their son Moses had just been released from prison and the fact that he was unemployed. Yet when Moses Kilton brought them money which they counted to a sum of VT400.000, they asked no questions. In addition they saw Moses give them cash, paid transport and bride-price all in cash and bought cargo from visiting local trading vessels, they asked no questions or made no enquiries. They both benefited from moneys which they could have known were stolen. Undoubted they both were guilty. Under those circumstances their sentences will be as follows -
(a) Kilton Bule - Count 14 - Receiving stolen property - section 131 PCA= 6 months imprisonment suspended for 1 year from the date of sentence.
(b) Elizabeth Bule - Count 7 - Receiving stolen property - 131 PCA= 2 months imprisonment, but suspended for 1 year from the date of sentence.
Restitution
Orders
1. Elizabeth Bule in ordered to repay VT10.000 to the victim of this case. She has paid a surety of VT10.000 to the Court. She now forfeits this sum to be returned to Mr Christopher Lo.
2. Kilton Bule is
ordered to repay VT100.000 to the victim of this case. He must pay VT5.000
beginning end of July, 2003 and continue
to pay without failure for 16 months
until all sums are paid up. All payments of restitution moneys must be made
through the Court
Registry in Luganville,
Santo.
6.
Philimon Sua
He is a man of 52
years old in gainful employment and supporting 5 children. 4 of these children
are at school 2 of whom are unable
to be in school due to hardship faced by the
defendant. His wife left him as a result of this proceedings. He has a medical
condition
allegedly due to assaults by police. His wish is to continue to
support his children to complete their education so they could have
a good
future. He asks that the Court imposes only a fine on him. It appears that he
has paid a surety to the Court - but there is
no confirmation as to the amount.
He is a first offender. I have considered his circumstances and accordingly I
impose on him a fine
in the sum of VT10.000. This fine is imposed in relation to
Count 11- Receiving stolen property contrary to section 131 PCA. This
fine shall
be paid as follows:-
(a) VT5.000 end of July 2003.
(b) VT5.000 end of August 2003.
Restitution
Order
Philimon Sua is hereby
Ordered to repay the sum of VT40.000 to the victim, Mr Christopher Lo at VT4.000
per month beginning end of
September 2003 and shall continue thereafter until
the whole sum is repaid in full. All payments must be made to the Court Registry
in Luganville,
Santo.
Joseph
Shem
7. He is charged
with three counts of receiving stolen property contrary to section 131 of the
PCA. In total he received Vt71.000.
These offences occurred in June 2002 and on
14th and 26th August 2002, respectively. He has a previous criminal record
showing that
on 12th July 2001 he was sentenced to 10 months imprisonment. The
dates show a repetitive pattern of behaviour. His actions therefore
deserve to
be punished by a jail term. A young man of 24 years of age with a wife and 2
young children with no steady income has
jeopardised the welfare of his children
and his family.
Under his
circumstances the court will impose prison terms to deter other offenders. But
these sentences will be suspended. Accordingly
the sentences are -
(a) Count 8- Receiving Stolen Property- section 131 PCA= 6 months imprisonment.
(b) Count 9- Receiving Stolen Property- section 131 PCA= 1 month imprisonment.
(c) Count 10- Receiving Stolen Property- section 131 PCA= 1 month imprisonment.
These sentences run
concurrently. And they are suspended for a period of 2 years from the date of
sentence.
Restitution
Orders
1. Joseph Shem is Ordered to repay the sum of VT71.000 to the victim of this case. He shall pay by instalments of VT5.000 per month starting end of July, 2003 and thereafter at the end of every month until the whole sum is fully paid up. All payments must be made to the Court Registry in Luganville, Santo.
2. The sum of VT740.000 recovered in the possession of Pedro Obed shall be returned to Christopher Lo personally by the Court Registry.
3. All the goods recovered by the Police at Moses Kilton's Store at Tisman village shall be returned to LCC store by the Police.
4. All items recovered by the Police which are identified as the property of Christopher Lo shall be returned personally to him by the Police.
5. All monies paid into the Court Registry in pursuance to these Orders must be returned to Christopher Lo in person.
The
Defendants are advised that should they wish to appeal that they do so within 14
days.
PUBLISHED
at Luganville this
27th
day of June, 2003.
BY THE COURT
OLIVER
A.
SAKSAK
Judge
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