Public Prosecutor v Restuetune
SENTENCE
A. Introduction
1. Mr Donald Restuetune, you appear for sentence today having been convicted after trial of misappropriation contrary to s. 123 and para. 125(b) of the Penal Code [CAP. 135].
B. Facts
2. In 2008, you became involved with securing a registered lease for the school Listair Advent Training Institute Committee (Inc.) (‘LATI’).
3. You were entrusted with VT1,600,000 for the purpose of a particular dealing, namely to secure leasehold title no. 03/0G52/004 at Melcoffee Sawmill area at Luganville on Santo island (the ‘004 lease’) for the LATI school premises and then to transfer the lease to the school once the school was registered.
4. The following amounts, totalling VT1,600,000, were withdrawn from the ANZ Bank account no. 1185682 in the name of LATI (‘LATI’s bank account’) and applied as follows:
i) On 7 August 2008, VT400,000 cash was withdrawn from LATI’s bank account and given to you;
ii) On 28 August 2008, VT500,000 was transferred from LATI’s bank account to your bank account;
iii) On 29 August 2008, VT700,000 cash was withdrawn, following which VT600,000 of that amount was given to you; and
iv) On 31 October 2008, VT100,000 was transferred from LATI’s bank account to your bank account.
5. You did not give LATI any receipts.
6. You obtained the registration of the 004 lease in your name alone which was also contrary to a verbal agreement that you would secure the 004 lease for LATI and register it in the names of Mr Tasso, Mr Leeman and yourself pending the registration of LATI.
7. However, after the school was registered with the VFSC on 21 June 2010, you refused to transfer the 004 lease to the school.
8. Mr and Mrs Macgillivray (on behalf of LATI) went to the Department of Lands and found out that no payments had been made for the 004 lease but that you had instead made payments for lease title no. 03/OG52/002 for yourself.
9. LATI therefore had to pay an additional VT962,000 to the Department of Lands for lease 004 because you had not used the VT1,600,000 funds entrusted to you to make the requisite payments to the Department.
10. After proceedings in the Supreme Court, Bill v Restuetune [2015] VUSC 36 (Civil Case No. 14 of 2013) and then the Court of Appeal in 2015, Restuetune v Bill – Orders by Consent [2015] VUCA 32, a declaration was made by way of consent orders that you held the 004 lease as trustee for LATI and would forthwith do all things necessary to record LATI as registered lessee of the 004 lease in their own right.
11. The Court decisions in Bill v Restuetune [2015] VUSC 36 (Civil Case No. 14 of 2013) and Restuetune v Bill – Orders by Consent [2015] VUCA 32 show that these proceedings were for the purpose of changing the registration of the 004 lease from your name to LATI’s name, after LATI itself had paid the VT433,000 lease premium for the 004 lease and then the VT962,000 required by the Department of Lands for that lease including the balance of the lease premium.
12. The wording that the parties agreed in the Orders by Consent in the Court of Appeal matter was that you (Mr Restuetune) held the 004 lease as trustee for LATI and would forthwith do all things necessary to record LATI as registered lessee of the 004 lease in their own right: Restuetune v Bill – Orders by Consent [2015] VUCA 32.
13. However, prior to that, you had resisted both Mr John and Mr Macgillivray’s (on behalf of LATI) claims in the Supreme Court to the 004 lease: Bill v Restuetune [2015] VUSC 36 (Civil Case No. 14 of 2013). You only accepted in the Court of Appeal that you must transfer the 004 lease to LATI’s name.
14. You therefore converted the property entrusted to you, that is, you used the property for a different purpose than its intended purpose namely by registering the 004 lease in your name and refusing to transfer it to LATI’s name until the matter was before the Court of Appeal when you agreed to consent orders dated 23 July 2015 that you held the 004 lease as trustee for LATI and would forthwith do all things necessary to record LATI as registered lessee of the 004 lease in their own right: Restuetune v Bill – Orders by Consent [2015] VUCA 32.
15. On 20 November 2015, the 004 lease was registered in LATI’s name. Accordingly, your actions caused loss to LATI, which loss LATI suffered in the period between it becoming registered on 21 June 2010 and 20 November 2015 when the 004 lease was finally registered in LATI’s name.
C. Sentence Start Point
16. The sentence start point is assessed having regard to the maximum sentence available, and the mitigating and aggravating factors of the offending.
17. The maximum sentence provided in the Penal Code for misappropriation is 12 years imprisonment (s. 123 and para. 125(b), Penal Code).
18. There are no mitigating aspects to the offending however, it is aggravated by the following:
a) Serious breach of trust;
b) The dishonesty and deception;
c) A degree of planning;
d) The victim was an educational institution;
e) The financial loss to the victim; and
f) No prospect of reparation.
19. The sentence start point that I adopt, taking all matters into account, is 3 years imprisonment.
D. Personal Factors
20. You are 50 years old. You are married and have children. You have tertiary vocational qualifications which have allowed you to establish your own business through which you have secured contracts with the Public Works Department. You employ six permanent staff and additional casual workers when required. You have an existing bank loan of VT6,500,000 and care for your children and elderly parents. You are on regular medication for diabetes and high blood pressure. You have good support from your wife and the chief of your community. You have no prior convictions. A further 6 months is deducted from the sentence start point for your personal factors.
E. End Sentence
21. Taking all matters into account, the end sentence imposed is 2 years 6 months imprisonment.
F. Suspension
22. The Court has a discretion under s. 57 of the Penal Code to suspend all or part of the sentence where it is not appropriate to make an offender suffer immediate imprisonment “… (i) in view of the circumstances; and (ii) in particular the nature of the crime; and (iii) the character of the offender.”
23. The offending is serious. As the then Chief Justice stated in Public Prosecutor v Mala [1986] VUSC 22, a decision that both counsel cited, “… In general a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money obtained is small.”
24. In the present matter, the amount of money was not small – VT1,600,000 – therefore in accordance with Mala and to denounce and mark publicly the gravity of the offence as well as the sentencing principles of general and specific deterrence, immediate imprisonment of part or the whole of the sentence is required.
25. I also take into account your prior clean record, your responsibilities to your children, business and employees, your good family and chief support, and prospects of rehabilitation.
26. Taking all matters into account, you are to serve 6 months of your imprisonment sentence and the balance of 2 years imprisonment is suspended for 2 years. You are to serve 6 months imprisonment immediately to reflect the culpability of your offending and to denounce this serious offending.
27. You are warned that if you offend again and receive a conviction within the next 2 years, that you will need to serve the remaining 2 years of this sentence in addition to any other penalty that may be imposed on you for the further offending.
28. This sentence of imprisonment may not be enforced until the time of appeal against sentence has expired or you have earlier elected to begin serving your sentence in accordance with s. 50 of the Penal Code. The Manager of the Correctional Centre at Luganville is to inform the Court if you fail to present yourself to the Correctional Centre by 4pm on 13 July 2026.
29. You have 14 days to appeal the sentence.
DATED at Port Vila this 29th day of June, 2026
BY THE COURT
………………………………………….
Justice Viran Molisa Trief