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Public Prosecutor v Roel [2003] VUSC 29; Criminal Case No 015 of 2003 (4 June 2003)

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

CRIMINAL CASE No. 15 of 2003

PUBLIC PROSECUTOR

-v-

MORSEN ROEL

AND

CRIMINAL CASE No. 17 of 2003

PUBLIC PROSECUTOR

-v-

MAKALIE PETER

Coram: Chief Justice Vincent Lunabek

Counsels: Mr. Eric Sciba for the Public Prosecutor
Ms Loa Damena-Tepai for the Defendants

SENTENCE

This is the sentence of defendants: Makalie Peter and Morsen Roel. The two (2) defendants are found guilty and convicted of the offence of Arson, contrary to Section 134(1) of the Penal Code Act [CAP. 135].

The maximum penalty imposed by law is 10 years imprisonment.

The mitigating factors on behalf of both defendants are below. The incidents of 8 February 2002 were very noble experience for the two (2) defendants. There was confusion as to what to follow. There was no police stationed on Emae Island for immediate help. This is common ground in Vanuatu where Chiefs attempted to maintain peace and order in their communities make use of their own people to do so. Thus, the situation of the two (2) defendants.

I am informed that the incidents occurring on 8 February 2002 leaded up to various criminal charges and prosecutions. Both defendants are subjected to other criminal prosecutions surrounding the incidents of 8 February 2002. Each and both are already convicted of some of the offences committed on 8 February 2002.

Peter is a young man of 19 years of age. He is single. He plans to have a family of his own. Peter has numerous responsibilities with his families. He helps his family by doing gardens, fishing and help raising the animals of the family. After the incidents of 8 February 2002, he was convicted by the Magistrates’ Court and sentenced to 1 year imprisonment suspended for 12 months.

Peter has no previous convictions other than his convictions referred to above.

Morsen Roel is 23 years of age. He is the bread winner of his parents. His parents rely on him. He has a wife. She is now pregnant. Morsen is responsible for paying the school fees of his cousin brother Charles at the Lycee School, Port-Vila.

Currently his is involving himself in the baking of local bread with a Roy Toara. He wishes that whatever the sentence, he may be allowed to attend his work at Anabrou in the morning of each day.

The offence of Arson under Section 134(1) of the Penal Code is a very serious offence. Parliament shows the seriousness of that offence by setting a maximum penalty of 10 years.

I have considered the mitigating factors. The defendants are two (2) young men of the Island of Emae. The two (2) defendants have expressed no remorse about what they have done. In sentencing the two (2) defendants I do not take into account of the convictions of each and both defendants secured against them in previous criminal prosecutions of other offences committed by each and both defendants on 8 February 2002.

In the type of cases as this one, the appropriate sentence must be a term of imprisonment to mark publicly the gravity of the offence and to deter the defendants not to re-offend and other not to commit such an offence. I have considered the suspension. However, there is no mitigating factor placed before me warranting for a custodial sentence to be suspended.

The question, then, is imprisonment for how long?

Two (2) cases are referred before the Court. The first case is the case of PP v. Ronnie Michel, Criminal Case No. 16 of 1987. The brief facts are that about mid-night a mother and her daughter were awakened by someone setting fire to their native house. They rushed out with their children and saw the accused running about with burning coconut leaves setting fire to their house and other houses. The accused is sentenced to 4 years imprisonment. The facts of this case are different from the present case. The sentence of 4 years imprisonment cannot be applied in the present case.

The second case is PP v. Charley Naicah and Others – Criminal Cases Nos. 13 and 14 of 2003. The Court imposes a term of imprisonment of 2 years. The facts are similar to the present case. Further they occurred as part of criminal offences occurring on some day Friday 8 February 2002 at Marae Village, Emae.

I apply the same term of custodial sentence. The appropriate sentence in the present case is 2 years imprisonment.

The defendant Makalie Peter has already spent the following periods in custody: 2002 – 1 month (Mid-February – March 2002) 2003 – 3 months (January – March 2003)

Makalie Peter has spent 4 months in custody. This will be discounted on his behalf from the term of 2 years imprisonment.

Makalie Peter is sentenced to 1 year and 8 months.

Morsen Roel is sentenced to 2 years.

Each and both defendants shall serve their respective imprisonment sentences with immediate effect.

DATED at PORT-VILA this 4th DAY of JUNE 2003

BY THE COURT

Vincent LUNABEK
Chief Justice