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Public Prosecutor v Jack [2004] VUSC 83; Criminal Case 047 of 2004 (3 March 2004)

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

CRIMINAL CASE No. 47 of 2004

PUBLIC PROSECUTOR

-v-

BEN JACK & JONATHAN YAHIPE

Coram: Chief Justice Vincent Lunabek

Counsel: Mr. Lent Tevi for the Prosecution
Mr. Jacob Kausima for the Defendant

SENTENCE

This is the sentence of the defendants, Ben Jack and Jonathan Yahipe. The defendants are charged with various offences against the provisions of the Penal Code Act [CAP. 135].

Defendant Ben Jack you are charged and you pleaded guilty with 2 counts of Damage to Property, contrary to Section 133 of the Penal Code Act, 1 count of Unlawful Entry contrary to Section 143 of the Penal Code Act and 1 count for Theft contrary to Section 125(a) of the Penal Code Act. Defendant Jonathan Yahipe you are charged and you pleaded guilty with 1 count of Unlawful Entry, contrary to Section 143 of the Penal Code Act, 1 count of Damage to Property, contrary to Section 133 of the Penal Code Act and 1 count of Theft, contrary to Section 125(a) of the Penal Code Act [CAP. 135].

The maximum penalty for an offence of Unlawful Entry in a human habitation carries a maximum penalty of 20 years, the maximum penalty for theft is twelve years imprisonment, and maximum penalty for damages to property is a fine or imprisonment for one year.

These are very serious offences charged against both Defendants under the Penal Code Act.

The brief facts are as follows:-

1. The Defendant Ben Jack is from Tanna. He is 26 years old and is unemployed. He is married and has 3 children.

2. The Defendant Jonathan Yahipe is also from Tanna. He is 28 years of age. He is married and works as a security officer.

3. On or about 10th November 2004, the Defendants planned to rob Mr. Alex Chong’s house.

4. On or about 13th November 2004, the Defendants entered Alex Chong’s home and robbed him.

5. Mr. Ben Jack broke the glass of the main door and both of them manage to enter the house.

6. They found a grey cash box which they dragged it outside including a DVD deck player and 17 DVD disc.

7. The Defendants stole a total amount of monies in excess of 6,200,000 Vatu including a DVD deck player and 17 DVD disc.

8. The Police interview the Defendants and they admitted the offence and say that they are very remorseful for the wrongdoing.

This is a well planned criminal activity as a result of which an amount in excess of Vatu 6,200,000 million was stolen including a DVD player and DVD Disc in a private home.

An amount of Vatu 6,209,824 million has been recovered and returned to the victim including the DVD player and the 17 DVD Disc. There is a factual issue as to the outstanding balance of Vatu 597,176. The prosecution says the balance is still missing and it is in the hands of the Defendants. The Defendants say at the time of the offence, they have no clear idea as to the total amount of monies they had stolen from the Chong’s house. There is no other material or information advanced by the prosecution. In such a circumstance, I should and must accept the version of the facts of the Defendants. This means that they have taken and believed to steal Vatu 6,209,824 from the house of Mr. Chong and that amount has been recovered by the police and returned to Mr. Chong.

When considering the appropriate sentence for the type of case as the present, I take into account the harm done to the victim and the community at large.

The Prosecution relies on the case of Public Prosecutor v. David Killion and Others, Criminal Case No. 44 of 2004 and Public Prosecutor v. George Charley Criminal Case No. 28 of 2003. The following aggravating factors were outlined in this present case:

(i) Unlawful entry of home premises.
(ii) Damages was caused in the entry and removal and taking away of the safe.
(iii) Loss of victim’s money.
(iv) Planning and premeditation.
(v) Previous convictions.

The defence submitted that the facts and circumstances surrounding this case are distinguishable from those matters in PP v. David Killion & Others Criminal Case No. 44 of 2004. In David Killion & Others, the excess amount of money was not return, however in this case only 597,758 was not recovered and that the Defendants did return all the amount of money stolen.

I accept the defence version of the facts that they have returned all the money they have stolen from Mr. Chong’s house. This is the only distinguishable factor from PP v. David Killion and Others but all the aggravating factors present in Killion case are present in the present case.

Therefore in balancing the aggravating features against the mitigating ones, the aggravating features clearly in this case outweigh the mitigating features.

Having considering the above, it must be said that this is a clear planned and predetermined course of criminal activities involving both of you defendants which reflect the seriousness of the offences as charged against each of you.

In sentencing each and both of you, I take into account of your circumstances individually.

Ben Jack

Ben Jack, your record shows that you have been persistently committing serious offences such as Unlawful Entry and Theft with a maximum penalty of over 10 years imprisonment. The last longest sentence you served was a sentence of 6 months imprisonment suspended for 2 years. You have been sentenced mainly for the same type of offences with imprisonment sentence and suspended sentence. Your record is bad for Unlawful Entry, Theft and Damage to Property.

I give you credit for your guilty plea, admissions and other mitigating factors. I sentence you Ben Jack as follows:-

1. Damage to property – 5 months imprisonment
2. Damage to property – 5 months imprisonment
3. Unlawful Entry – 5 years imprisonment
4. Theft - 5 years imprisonment

Ben Jack is to serve the above sentences concurrently. This means that Ben Jack, you serve 5 years of imprisonment in total. You have already served 3 months and 3 days in custody. This is deducted in your favour. You are to serve 4 years and 8 months imprisonment with immediate effect.

Jonathan Yahipe

Jonathan Yahipe, you have also a bad record of persistently committing offences of Unlawful Entry, Theft and damage to Property. You have been sentenced to fines, suspended sentence of imprisonment and imprisonment sentence. The last offence you committed was Unlawful Entry and Theft. You were sentenced to pay fine and prosecution costs.

I give credit for your guilty plea, admission and other mitigating factors. I sentence you Jonathan Yahipe as follows:

1. Damage to property – 5 months
2. Unlawful Entry - 5 years
3. Theft - 5 years

Jonathan Yahipe, you have to serve the above sentences concurrently. This means you only will serve 5 years in total. You have already served 3 months and 17 days. This is deducted in your favour. You must now serve the outstanding sentence of 4 years 8 months and 13 days imprisonment with immediate effect.

Warrants to be prepared and returned to custody to serve your respective sentences.

Each and both of you have 14 days to appeal.

DATED at Port-Vila this 3rd day of March 2004

BY THE COURT

Vincent LUNABEK
Chief Justice