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Lauto v Public Prosecutor [2003] VUSC 21; Criminal Case No 010 of 2003 (28 April 2003)

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

Criminal Case No. 10 of 2003

MERESINI LAUTO

-v-

PUBLIC PROSECUTOR

JUDGMENT ON APPEAL

The appellant was convicted on two counts of misappropriation by the Magistrates Court. She was sentenced to “2 months suspended sentence in full”, costs and repayment of the sums taken. She appeals against conviction and sentence.

The grounds of appeal are set out and are directed to the reliability of the witnesses and the sufficiency of the evidence to prove the case. It was circumstantial. The appellant argues there was not enough to negate, beyond reasonable doubt, the possibility that someone else took the money.

The appellant was employed by B. P. This was a private prosecution brought with the consent of the Public Prosecutor. It was alleged she worked as a dispatcher for oil drums at the B. P. depot. She controlled the gate, took money in advance, gave receipts and invoices and checked vehicles as they left. It was alleged that on two occasions she received cash did not properly complete paper work and kept the cash. The second occasion, she was under suspicion and a specific check was made on her activities. She wrote out a short admission before being dismissed.

The appellant denied the charges, stated it must have been someone else, but she could not specifically say who. The admission was made to avoid going to the police. She was represented in the lower Court by a lay person.

The prison sentence is said to be too harsh, for a first offender, albeit suspended. Her means preclude a full costs order and compensation.

An appellate court has not had the benefit of hearing the witnesses give evidence and will be reluctant to interfere with the findings of the Court that did.

I can find nothing that leads me to form any different assessment of the witnesses’ veracity and reliability than that of the Magistrate. They are consistent, there was scope to reinforce the case against the appellant but that was not done. There are areas of “recollection” in prosecution witnesses’ evidence. There is nothing to show unreliability was present.

I now consider whether that evidence was sufficient. Cases of circumstantial evidence require great care especially when employees are alleged to have taken money and there are others who might arguably have taken it. I leave aside the evidence of the alleged admission.

The learned magistrate carefully analysed the evidence concerning the first incident. It all pointed to the defendant. There was no evidence pointing elsewhere. There were inconsistencies in what the appellant alleged in cross-examination. The magistrate rejected her evidence.

As a result of the first incident the management were alerted and made a specific check. This was not a question of recollection after a series of normal transactions, minds were focused on the appellant and her action. Evidence showed a note requesting a drum and cash in an envelope were on her desk. The envelope was slipped under some books. A check was made later and it had gone. The appellant denied any knowledge of it. The magistrate rejected the appellant’s explanation, it was in fact negated by prosecution documentation.

I have considered the evidence and the judgment, together with counsels’ arguments. There is nothing inconsistent in the admission. I can find no basis on which this appeal against conviction can succeed. It is dismissed.

I consider the appeal against sentence. Any employee is in a position of trust. Custodial sentence must be excepted if that trust is breached by the misappropriation of money or employees’ property. The fact the appellant has no previous convictions does not in itself alter this. The magistrate imposed a short term, 2 months. That is well within the scale to be expected. Because of her personal circumstances he suspended it. That was a proper use of the powers to suspend. He should have stated for how long he suspended it. Given the appellant’s means and the sums taken, compensation in full was correct. I do find the Order of VT100,000 in costs high given her circumstances.

Accordingly I dismiss the appeal against conviction.

I dismiss the appeal against sentence save to suspend the sentence for 18 months reduce the costs order to VT50,000 to include the costs of the Magistrates Court and this appeal.

Pay at VT2,000 per fortnight starting 9th May 2003.

Dated at Port Vila, this 28th day of April 2003.

R. J. COVENTRY

Judge.