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Public Prosecutor v Ehndvaun [2004] VUSC 61; Criminal Case 052 of 2003 (9 July 2004)

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

CRIMINAL CASE No. 52 of 2003

PUBLIC PROSECUTOR

-v-

MERCY EHNDVAUN

Coram: Chief Justice Lunabek

Counsels: Mr. John Stephen for the Public Prosecutor
Ms Kirstin Donlevy for the defendant

SENTENCE

This is the sentence of the accused, Mercy Ehndvaun. The defendant is charged with the following offences:

▪ 10 counts of forgery, contrary to Section 140 of the Penal Code [CAP. 135];
▪ 16 counts of theft, contrary to Section 125(a) of the Penal Code [CAP. 135]; and
▪ 4 counts of misappropriation, contrary to Section 125(b) of the Penal Code [CAP. 136].

The accused pleaded guilty to each and all the counts as charged against her.

The defendant is a woman of 29 years of age. She is married. She has four very young children, aged 9 years, 4 years, 2 years and 5 months.

From 1999 until 2002, she was an employee of the Central Credit Union (CCU) in the position of treasurer. She was responsible for the day to day operation of the CCU. She receives on behalf of the CCU, deposits and savings its members. She then paid the monies towards the loans and expenses. She also collects monies and deposits them at the National Bank of Vanuatu and ANZ Bank on behalf of the CCU. She pays loans to members and does expenses and withdrawals. At the CCU, three (3) persons are authorized to withdraw monies from the Bank: the Manager, the defendant as treasurer and the Secretary of the CCU, Philip Torboe.

Between 27 October 2000 and 29 March 2001, during the course of her employment, on 10 different occasions, she forged the signature of John Crawford Amel, a member of the Credit Union and withdrew Mr. Amel’s monies as additional loan on Amel’s behalf. The amount withdrawn from Amel’s Account was VT100,000 without his knowledge or approval.

In the same period, the defendant, on 20 different occasions misused VT523,127 payable to her. She did not record the amounts misused on her daily transactions, and it did not appear in the National Bank of Vanuatu (NBV)’s statement if deposited.

The total of monies taken by the defendant was 865,179 Vatu, over a period of 6 months.

The defendant was interviewed at the Police station on 23 August 2001 and she admitted the offences as charged.

The defendant says that when she commenced her employment with the CCU as treasurer, she was informed that she was required to work for 3 months without any salary, after which time she would receive a salary. It is also said that by 2000, the defendant has still not been paid a salary. It is further said that although, she asked for a salary several times over the subsequent year and half, she was consistently told that it would be approved. It is said, the defendant was under significant financial strain. Her husband was employed but his salary was not enough to pay for food, electricity, water, school fees, transport and their four (4) sons. The defendant was faced with the pressure to bring home salary. It was under such circumstances that the defendant started misappropriating monies from the account of John Crawford Amel, at the CCU at the end of 2001 and subsequent misuse of monies of the CCU.

The defendant is guilty on each and all the counts of Forgery, contrary to Section 140 of the Penal Code Act [CAP. 135], theft and misappropriation contrary to subsections (a) and (b) of Section 125 of the Penal Code respectively. She is convicted on each and all the counts as charged accordingly.

Theft and misappropriation of monies of other person or body is always a serious crime. This is more so when the defendant is in a position of trust. The misuse and misappropriation of monies while entrusted in the position of Treasurer of the CCU is an aggravating feature.

In cases such as the present one, the leading authority is Public Prosecutor v. Keith Mala, Criminal Case No. 42 of 1995. The guidelines are set outset out in that case. Other local authorities applying the guidelines are also referred to this Court. [PP v. Leah Tureleo, Criminal Case No. 48 of 1995; PP v. Georgette Ralovu, Criminal Case No. 29 of 2003; and others].

The following are matters to which the Court will wish to pay regard in determining what the proper level of sentence should be:

(i) the quality and degree of trust reposed in the offender including his rank;
(ii) the period over which the fraud or the thefts have been perpetrated;
(iii) the use to which the money or property dishonestly taken was put;
(iv) the effect upon the victim;
(v) the impact of the offences on the public and public confidence;
(vi) the effect on fellow employees and partners;
(vii) the effect on the offender himself;
(viii) his own history;
(ix) those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial, finally any help given by him to the police.

Applying the guideline principles to the present case, it follows that:

(i) the amount of Vatu defrauded is 865,179 Vatu;

(ii) the defendant is the Treasurer of the CCU, a position of trust within the CCU and its members;

(iii) the period of criminal offending is of about six (6) months;

(iv) the defendant used the monies for her own purpose;

(v) the CCU and its member John Crawford Amel suffered financial losses;

(vi) the matters in mitigation are set out below:

▪ The defendant has no previous convictions and is a first time offender.

▪ She has pleaded guilty at the first available opportunity presented to her.

▪ The defendant has a mitigating factor special to herself. She started working as the Treasurer of the Central Credit Union (CCU) in 1999 without any salary for the first 3 months, after which time she would receive a salary. After the 3 months lapsed, no salary was paid to her. By the year 2000, the defendant has still not been paid a salary. She asked for a salary several times over the subsequent year and half, she was constantly told that it would be approved. She received no salary. She was under significant financial strain to bring home salary to pay for food, electricity, water, school fees, transport and home for her 4 sons. She then started forging, misappropriating and misusing monies of the CCU and its members.

▪ She is willing to repay the monies to the CCU. She has paid back to the National Bank of Vanuatu Vatu 105,000 in 2001.

▪ She has started a small business making nems and selling them around the schools and work places with the intention to repay the monies she had taken.

▪ She earns 15,000 VT per week. She employs 2 persons to assist her.

Having considered the aggravating and mitigating features and on balance, the circumstances of the type of a case such as this warrant a limited imprisonment sentence. The appropriate term of imprisonment sentence on the circumstances of a case such as the present, should be not more than 6 months on each and all counts concurrently.

I then consider the mechanism set out under Section 44(1), (2), (3), (4) of the Penal Code [CAP. 135].

Section 44 of the Penal Code provides:

“44.(1) In any case in which a person convicted of a criminal offence may be sentenced to imprisonment for a limited term in accordance with any provision of law, the court may in its discretion sentence such person in place thereof to undergo periodic detention for a term of not less than 1 month and not more than 6 months.

(2) Periodic detentions shall mean the loss of liberty of the offender for not more than 36 hours between Friday evening and Sunday evening in each consecutive week throughout the term for which such periodic detention has been imposed. During such sentence the offender shall be obliged to perform community work without remuneration for periods not exceeding 8 hours in each day.

While in detention for such periods, the offender shall be treated as far as local circumstances as though he were undergoing a sentence of imprisonment.

(3) In exercising its discretion under subsection (1) the court shall have regard to the nature of the offence, the age and circumstances of the offender including his occupation or employment, family circumstances, the prospects of his reformation and any other circumstances which it may consider relevant.

(4) If an offender sentenced to periodic detention shall fail on any occasion to surrender himself into custody, properly to perform the work he is directed to perform or to comply in any way with the terms of such sentence or the rules governing periodic detention, such sentence shall thereupon lapse and he shall be taken in custody before the same court to be sentenced afresh and he shall not thereafter be eligible for periodic detention.”

Having regard to the nature of the offences, the age and circumstances of the defendant including her family circumstances, the prospect of her reformation, I sentence the defendant for a periodic detention of 6 months on each and all counts as charged and to be served concurrently.

The defendant is also ordered to repay Vatu 750,179 to the Central Credit Union. The defendant is to pay 14,000 Vatu per month to the Central Credit Union until the full amount of VT 750,179 is paid. The first payment shall be made by 23rd July 2004.

During the term of six (6) months periodic detention, the defendant must surrender herself every Sunday morning at 8.00AM to Women Prison and be kept there until 5.00PM o’clock.

During such time the offender shall be obliged to perform community work without remuneration for periods not exceeding 8 hours in each day. The Vila SDA Church agrees for the defendant to perform community work under their supervision. The defendant is ordered and directed to work under the supervision of the Vila SDA Church – Efate, for 720 hours during the 6 months. This means that the defendant must work 30 hours every week under the supervision of Vila SDA Church.

Pastor Leeman or a Community Service Leader of the Vila SDA Church will supervise the defendant during the community work. The defendant will perform the types of activities or services as described by Pastor Leeman in his letter of 27 April 2004 including:

▪ Hospital visitation
▪ Prison visitation
▪ Visitation to homes of church families and non church families
▪ Distribution of food and clothes
▪ Involving in basic health education:-

- simple treatment – hot and cold water treatment etc.
- few days plan for stop smoking and alcohol drinking .
- cleanliness and hygiene, etc.

▪ Involving in workshops in:-

- sewing, cooking, growing vegetables, management, flowers arrangements, etc.

The time and date are to be set by the Vila SDA Church.

The practical detailed arrangements are as set out and explained below:-

The defendant is sentenced for a periodic detention of a term of 6 months pursuant to Section 44 of the Penal Code Act [CAP. 135]. A sentence made pursuant to Section 44 of the Penal code is able to be practically applied as follows: The defendant must report to the warden in charge at the Women’s Prison House on the day that she is sentenced or the following day. She must report to her Supervisor at the SDA Church on her first day of work, which it is expected will be on the same day she reports to the warden or the following day. She is expected to complete approximately 30 hours of work every week, but must complete 720 hours within 6 months. At the end of each day she is required to fill out an attendance sheet which shows how many hours of work she has completed. She must present this to the Supervisor for signature and the Supervisor must also sign his or her own copy of the attendance sheet. When the defendant presents herself on or before 8.00AM on Sunday morning to the warden of the Women’s Prison House she must show the warden her attendance sheet for the previous week. The warden must sign the sheet and note the number of hours completed in that week in on the record sheet to be kept at the Prison House.

The defendant will be provided with the following documents:

1. Information sheet detailing what the defendant must do after she has been given the order, who she must report to, what work she must make in the community, how she must fill out the attendance sheet, when she must report to the Prison House for detention, what happens if her family is sick or dies and she is unable to attend work and what will happen if she does not perform the work properly or the number of hours required to be completed under the order. A copy of the information sheet is attached and marked “Attachment 1-A”.

2. Attendance sheet. A copy of the attendance sheet is attached and marked “Attachment 1-B”.

The Women’s Prison House will be provided with the following documents:

1. Record of attendance sheet. A copy of this sheet attached and marked “Attachment 2-A”.

2. Notice which outlines the detention period, the hours of community service and the period in which these hours must be completed and details what the warden must do in terms of signing the attendance and record sheet. A copy of this notice is attached and marked “Attachment 2-B”.

The Supervisor will be provided with the following documents:

1. Notice which outlines the period of community service to the undertaken, the number of hours and the prison in charge, what the Supervisor must do if the defendant does not perform the work properly and details what the Supervisor must do in terms of signing the attendance sheet. A copy of this notice is attached and marked “Attachment 3-A”.

2. Attendance sheet. A copy of this sheet is attached and marked “Attachment 3-B”.

If the defendant fails to properly perform the work according to the Supervisor the Supervisor is to note this on the attendance sheet. When the warden observes such comments on the attendance sheet he or she will report this to the Court. This is outlined in the notices to both the warden and Supervisors. If the Supervisor has difficulty with the defendant or is no longer unable to provide work for her, it is noted on the notice to be provided to the Supervisor that they should contact the warden in charge of the Women’s Prison who will then inform the Court.

At the end of the period of community service and detention, attendance sheet in possession of the defendant, the attendance sheet in the possession of the Supervisor and the record sheet in the possession of the Women’s Prison will be reconciled to determine if the defendant has completed the order successfully. If she has not completed the number of hours required in 6 months or the Court has received a report that she has not completed the work properly as required by Section 44(4) of the Penal Code she shall be taken in custody before this Court to be sentenced afresh.

The attachments 1-A, 1-B; 2-A, 2B; 3-A, 3-B are part of this judgment/sentence and they are attached to the judgment.

Dated at Port-Vila this 9th day of July 2004

BY THE COURT

Vincent LUNABEK
Chief Justice