Newell v Public Prosecutor [1998] VUCA 2; Criminal Appeal Case 05 of 1997 (9 January 1998)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Criminal Appeal Case No. 5 of 1997

IGN="CENTER">BETW>BETWEEN:

DAVID NEWELL
Appellant

AND:

THE PUBLIC PROSECUTOR
Respondent

ram: Hon. Justicestice Bruce Robertson
Hon. Justice John von Doussa
Hon. Chief Justice Sir John Muria

ounsel: Mr John Malcolm and Mr Edward Nalial for the Appellant
Ms Kayline Tavoa fooa for the Respondent

JUDGMENT OF THE COURT DELIVERED BY
BRUCE ROBERTSON J.A.

This is an Appeal against sentence only in respect of five sentences imposed in the Supreme Court at Luganville, on Santo on the 7th of October 1997 in respect of convictions entered against David Newell. David was born on the 11/12/82. Three of the convictions arise out of an incident on the 24th of December 1996 when David’s close friend Willis Kuku was fatally injured in a bush cottage at Big Bay on Santo.

David was initially charged with intentional homicide. Prior to his trial commencing the prosecution amended the charge to one of unintentional harm causing death contrary to section 108 (c) of Penal Code Act [CAP 135]. He was also charged with two offences under the Firearms Act. One of being in possession of a firearm under the age of 18 contrary to section 4 of the Firearms Act [CAP 198] and one of disorderly behaviour in possession of a firearm contrary to section 25 of the Firearms Act.

Prior to trial he entered a plea of guilty to the charge of possession. He went to trial on the other two matters and was eventually found guilty of them. There was a period of some weeks between the conclusion of the trial and the court announcing its verdict. During that time David was on bail on strict conditions. One night he breached the bail condition and committed the two offences against the provisions of section 41 and 42 of the Road Traffic Act [CAP 29] being a charge of driving without a licence and driving with no insurance.

Although these were matters which would normally be dealt with by a Magistrate they were brought before the learned Judge dealing with the more serious matters. David pleaded guilty to those two charges.

Accordingly there was to be dealt with on sentence, the three charges to which he had pleaded guilty and the two charges on which the court had found him guilty after trial. Immediately following conviction his then counsel Mr Baxter-Wright filed a Notice of Appeal against conviction on the two charges to which he had gone to trial and against sentence in respect of all five charges.

The matter was brought at very short notice before the Court of Appeal on the last day of its October session in 1997. Mr Baxter-Wright on behalf of David made vigorous and strong submissions that the court should proceed with the matter immediately. At that stage there was not available any part of the reason for verdict or the Judge’s comments on sentencing. We were persuaded that it was not possible to deal with the matter, although we indicated that if no steps had been taken with regard to the hearing of the appeal by the end of January, (this month) then the restriction on his passport being held could not be maintained.

When the Court of Appeal found it necessary to sit in Vila this month, the case was listed. It was initially suggested that the matter would have to be adjourned. Although there is available a first draft of the Judge’s reasons for verdict which runs to some 56 pages of very small typing which is a really extraordinary analysis of the evidence, it does not include the Judge’s reasons for the findings which he made or his comments upon sentence. We were concerned at the effect on this lad who is now just over 15 in having his case further delayed awaiting the transcript for Judge’s reasons. Equally we were concerned however, at our ability as an Appellate Court in a sensible way to consider an appeal against conviction in the absence of the material which is central to that analysis.

We accordingly indicated to counsel when we came into Court this morning that having regard to the extra ordinary circumstances we would (if both counsel agree and it was consensual) deal with David’s appeal against sentence. That is we would hear a sentence appeal on the basis that the convictions were properly entered. We would determine the sentence appeal but that was to be without prejudice to David’s right at the next sitting of the Court of Appeal in Vila to pursue his appeal against the conviction if he chooses to do that. If he were successful on that there would be an automatic disappearing of any sentencing which is in place. Sentences follow conviction and cannot exist without the conviction upon which they are based.

With the consent of both parties we therefore turn to the sentence appeal. It is clear that the circumstance relating to the tragic incident on the 24th of December 1996 were found by the Court to be a situation in which a group of youngsters who were together for a holiday. They had access to a firearm. David was playing the fool and acting carelessly with regard to it. Without deliberation or warning the firearm went off and his friend was immediately killed. The evidence suggested that David panicked and withdrew. He has consistently denied that he had any involvement in what had occurred. We are dealing with his sentence upon the basis that there was a proper evidential based for the Judge to conclude that he was implicated as alleged by the Prosecution.

In respect of the unintentional harm he was liable to 5 years imprisonment. On the charges under the Firearms Act the maximum penalties were 3 months and 2 years . Dealing with cases of this sort creates some of the most difficult sentencing tasks in any Court. This is a matter which in general conversation would be described as an accident. In the laws term it is a situation where death result from an unlawful act. That in law is not an accident but is unintentional harm causing death. A criminal court in determining sentences on this sort of charge cannot possibly put a value or an appreciation of the life which has been lost. It is unfortunate (particularly when people are grieving and hurt) that sometimes there is a suggestion that the Court minimise the value of the life which was taken what the court is concerned to do is to assess the criminal culpability of the wrong doer. In a case such as this a Court cannot ignore the reality that David as a teenager faces a life time in which he lives with the knowledge that as a consequence of his careless act a life was taken.

Having recognise that there is difficulty in assessing appropriate sentences for unintentional harm causing death generally, there is an added complication in this case because of the provision of 38 of the Penal Code [CAP 135] which provides:

S. 38(1) No person under 16 years of age shall be sentenced to imprisonment unless no other method of punishment is appropriate. Where any such person is sentenced to imprisonment, the court shall give its reason for so sentencing.

S.38(2) An offender under the age of 16 years shall serve a sentence of imprisonment in a special establishment or, if no such establishment exists, shall be separated from offenders of 16 years and over.

The effect of that (as David was only a few days over 14 at the time of the incident so the provision clearly applies) means there is a prohibition upon his imprisonment unless no other method of punishment is appropriate. That applies equally to all the other charges. We immediately say that in respect of each of the other 4 charges it could not have been possible to justify a term of imprisonment. The offences under the Road Traffic Act and the Firearms Act (although potentially serious) could not fall into the category where the prohibition could be passed.

The issue is whether the actual circumstances which were established at the trial on the major charge were of such a nature that no other punishment was appropriate. We are not satisfied that the hurdle was crossed. Of course it is always dangerous for anybody (young or old) to fool with a firearm. But when we look at other sentences which are imposed for unintentional harm causing death (and reference has not been made to cases of drunken driving causing death like Public Prosecutor -v- Pakoa Samuel and Public Prosecutor -v- Kenny Alang where imprisonment was not imposed,) we are persuaded that it could not in the circumstances of this case be concluded that no other method of punishment was appropriate.

Accordingly it follows that each of the sentences of imprisonment which were imposed cannot stand. We do not overlook the fact that the learned sentencing Judge applied the provision of the Suspension of Sentences Act [CAP 67] and in respect of every term of imprisonment which he imposed he entered an order for suspension. Before a Judge can use the provisions of the Suspension of Sentences Act the Judge must first be satisfied that a term of an imprisonment is justified. There is sometimes a temptation to blur the line and to think it will make the statement that this is a serious matter but immediately suspend so that no detriment will actually occur providing a person is of good behaviour thereafter. Although we can understand the temptation to do that, it is not a permissible course of action under the Act. It is only if the court is satisfied that an immediate term of imprisonment is both proper and justified that one can contemplate using the provisions of the Suspension of Sentences Act.

What alternatives were available? We have considered the provisions of section 43 of the Penal Code [CAP 135] which provides for a conviction and discharge. We are of the view that is not an appropriate course of action when a life has been taken.

We have considered probation. David’s father is a British subject and his mother was born in Fiji. He has spent time in a variety of places in and about Asia and the Pacific. All the information which have been placed before the court has been on the basis that following this terrible tragedy in which he was implicated the family decided that it would be better if David were to reside permanently in the UK. If that is to be the position a probation sentence which might otherwise have been thoroughly appropriate is not sensible.

This is not a case of dealing with someone differently because he is not Ni-Vanuatu. It is a case of recognising that although denunciation and condemnation of anyone who fools with firearms is very important, the long term future and guidance of a young man who has been involved in this sort of traumatic experience are important factors as well. It does not appear to us that the benefits of a probation supervision sentence which would hold him within the Republic outweigh other factors which are contained in the reports.

Accordingly it appears to us that the only real alternative available is the provisions of section 42 that is where the person is convicted and ordered to come up for sentence if called upon within a specified period of time.

To some that may appear a particularly lenient approach but there are two factors which weigh with us. One is the restrictions which is placed on the court by Parliament in the prohibition against imprisonment when dealing with people under 16. Secondly this court cannot ignore the fact that after the preliminary hearing this lad (then aged 14 years 6 months) was confined for a period of some 7 weeks in the prison in Santo. It is not been made clear to us how or why that occurred. Section 38 is expressed in terms of sentenced prisoners. The same approach must be even more applicable to a person who is awaiting trial and who has not even been convicted. It is however a fact that as well as living with the consequences of his foolish actions, this very young lad spent what no doubt will be a period he will never forget confined in the prison in those circumstances.

We are therefore of the view that when the total circumstances are assessed a sentence under section 42 of the Penal Code Act is the appropriate way of dealing with this young man in respect of the charges which arise out of the 24th December 1996.

We are of the view that there should be a separate penalty in respect of the two driving matters simply to remind David that that was a bad blue on his part to have breached the terms of his bail and then to have committed other offences while that was occurring.

In the original sentencing orders were made that David should make a contribution to the costs of Prosecution and that he should be involved in matters relating to reparation, and restitution and that his passport should be held in the mean time.

The Court was advised that although on the Anniversary on the date of William’s death some endeavour was made to have a time of reconciliation that was not possible. We are advised that to the best of the knowledge of both counsel no civil proceedings have been commenced and the three months period stipulated has expired. It might have been thought these issues were put on hold pending the hearing of the Appeal against conviction. But whatever the position we are of the view that bearing in mind the age of this boy, that he was in school and without any financial means orders for Prosecution costs or the contemplation of civil proceedings against him cannot justify the holding of his passport.

It is a matter for those who have been affected and suffered detriment as a result of the tragedy to consider what steps they want to take. But we are persuaded that is not appropriate to have any order which places any restriction on his entitlement to use his passport in the circumstances of this case.

Accordingly in respect of the appeal against sentence, all sentences and orders which were imposed in the Supreme Court at Santo are now quashed. That is the terms of imprisonment, the order for payment for costs of Prosecution and the order with regard to the holding of his passport. In respect of the first charge under the Penal Code Act and the two charges under the Firearms Act, David is convicted and ordered to come up to sentence if called upon within a period of two years pursuant to the provisions of section 42 of the Penal Code Act. In respect of each of the charges under the Rode Traffic Control Act he is convicted and fine Vatu 5,000 on each of those charges.

The two fines are to be paid today 9th January 1998. For the avoidance of doubt we add that the two year period under section 42 will run from today, that is two years from 9th January 1998.

David Newell’s passport should be returned to him forthwith.

In respect of the Appeals against conviction, that matter is adjourned for hearing at the next session of the Court of Appeal in Vila. We should indicate that this Bench is of the view that if that matter is to be pursued there must be a hearing then whether all the documentation is available by that time or not.

DATED AT PORT VIRT VILA THIS 9th DAY OF JANUARY 1998

FOR THE COURT