Regina v Nguyen Van Thang [2013] SBHC 26; HCSI-CRC 150 of 2011 (27 March 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Criminal Case No.150 of 2011.

REGINA

V

NGUYEN VAN THANG

Date of Submission: 7th March 2013.
Date of Sentence: 27th March 2013.

Mr J. Naigulevu for the Crown.
Mr D. O'Shea for the Accused.

SENTENCE.

Faukona J: The accused Nguyen Van Thang was convicted by this Court on 30th November, 2012, for the offence of murder contrary to section 200 of the Penal code and the offence of unlawful wounding contrary to section 229 of the Penal Code. The offence of murder had been dealt with accordingly.

2. The offence of unlawful wounding occurred at the same time as murder on the fishing vessel "Pacific Pride" on February, 2011. At that time of occurrence the crewman of the vessel were celebrating Chinese New Year. The accused and the victim were of Vietnamese origin and both were crewmen of the vessel.

3. The Court found that the accused was responsible for inflicting the fatal wound on the right side of the neck of the victim. According to Dr. Baerodo's report the wound measured about 3cm in length and 5cm depth, and was located in the posterior triangle near the base of the neck. The report also revealed that the vein on the right side of the neck was particularly incised as a result caused massive blood loss. The Dr. described the wound as life threatening with a major blood vessel of the neck involved causing massive blood loss. The injury was fatal had emergency surgery not been performed promptly.

Aggravating facts:

5. The nature of injury was described as life threatening by Dr. Baerodo's report; a transverse wound which accounted for partial incision to the major jaqular vein causing major blood loss.

6. The prisoner on the face of evidence was an aggressor who displayed a hostile animus towards the victim, having confronted him and tore his shirt earlier, then followed him to his room where he struck at him with the knife. The victim did not provoke the assault.

7. At the time of incident the prisoner was armed with a working knife which was used to clear entangled fishing net. Earlier the convicted prisoner had struck two other persons with the same knife, one fatally.

8. There is evidence that the prisoner was under the influence of alcohol. No reason can be accepted, although there is evidence that all the crews were celebrating Chinese New Year and alcohol consumption was part of the celebrations.

Mitigating Features:

9. The prisoner is a young unmarried man from Vietnam. There are eight siblings in his family and his parents still alive. The prisoner is a fisherman by trade. He ended up working on fishing boats in South Africa and also Solomon Islands. As he would have experienced as a fisherman he spent long periods at sea and often found it not easy to contact his families back home. To mitigate a feature he has knowledge of and had accepted as part of his employment is unacceptable.

10. The prisoner knew the victim from growing up in the same village though not related. He last worked with the victim for about 18 months.

11. As a fisherman he earned about US600.00 per month. The prisoner now at Rove prison and he is progressing well learning Pidgin and English.

12. The prisoner is a man of past good character. He had no record of criminal convictions with Police and authorities.

Power to recommend minimum sentence:

13. Whilst interest of justice is of paramount importance and served by going through the door opened by the Court of appeal in Manioru case[1] Since that case there is no practice direction issued so far. Whether those directions may involve legislative amendment or inclusion is a matter that has yet to be finalised. Meantime the Court has discretionary power to pronounce before passing sentence the minimum serving sentence before a prisoner can apply for parole. However my personal view is that discretionary power of the Court cannot be exercised in a vacuum. There ought to be some legal basis for it. Having said that, I noted the door has opened, however, the discretionary power ought to be exercise practically premise on legal basis. If there should be any practice direction in place that ought to be legally based as well.

Sentencing assessment:

14. Use of a weapon as knife to inflict wound described by Medical report as life threatening is a serious act of culpability. Such person has no respect for humanity and its existence. Co-existence of humans and nature is a prestige offered to harmonise peace, love and tranquillity. To have a human indifferent in character, living in a society, brings anti-sociality and disunity in the community. Those must be recognized by law as self-esteem and ought to be seriously dealt with according to law. And that require immediate lawful segregation from the society. The severe consequence alluded proportionate to the level of culpability and the approach legally obliged is one of severe and upper range of sentence.

15. However, to avoid being bias and mean, I take on board all the mitigating factors, including significant fact as good character with no previous convictions.

16. It is quite amazing that two one talks coming from the same village in Vietnam could have animosity and differences in a foreign land. They should, as expected, have close relationship than any other one talk from other villages. What had occurred had protruded an attitude by the prisoner. To blame alcohol is a cheap way of brushing aside responsibility, which is unacceptable and does not assist the prisoner much.

17. Hash condition on a fishing boat may be accepted as a mitigation factor. In countries like Vietnam, employment is rigid and only fortunate ones find employment. The prisoner started work on fishing vessel since 14 or 15 years of age. He had been familiar himself with cramped and difficult living conditions physically demanding on those boats at sea. There can be no excuses as a fact that, influence the prisoners attitude. That is unacceptable.

Appropriate sentence:

18. Counsel for the Crown submits a number of comparative sentences and non-coming from defence. The range of sentence imposed by the court in this country for unlawful wounding range from $1000.00 for good behaviour to 4 years. There is one case which carry 4 years imprisonment term, that is Regina v Willie Maoma.

19. In Willie Maoma's case the prisoner was convicted with another person for murder, aggravated robbery and going armed in public.

20. In this case the stubbing was serious and life threatening. Had the surgery being slowed or late the victim would have met his fate and died. I have decided that the sentence should commence on the upper range and 4 years is perhaps appropriate as starting point.

21. The remarks made in Lusibae's case[2] that offending involved shooting the victim in the knees at close range does not reflect "substantial sentence" in reality. Two years in my view is far more less. This case warrant more than that.

22. It is perceived necessary because assault of this nature is often too prevalent in this country. And many people in this country are now prepared to use knives without thinking of the consequences.

23. In this respect I am obliged to resound that there is need for general and specific deterrence. The courts in this country are not reluctant to severely punish anyone using weapon to inflict fatal wound on others. At the same time ensuring convictors of such crime are dealt with according to law.

24. Having set 4 years as starting point and after considering the mitigating factors the sentence is reduced by 4 months. When weighing the balance the scale tend to weight more on the aggravating factor that of course will tilt the scale further up.

25. In deciding the appropriate sentence having considered all the aggravating and mitigation features, and the circumstances surroundingthe committal of the offence and the consequential result, I therefore imposed a 4½ years imprisonment.

The sentence to run current with the sentence of murder now serving and shall commence on 2nd February, 2011.

The Court.

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^[1] [2012] SBCA 1 Court of Appeal.
^[2] (2010) SBHC 80.