Withford v Public Prosecutor [2007] VUCA 20; Criminal Appeal Case 07 of 2007 (30 November 2007)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Criminal Appellate Jurisdiction)

Criminal Appeal Case No 07 of 2007

BETWEEN:

GABILOU WITHFORD
Appellant

AND:

PUBLIC PROSECUTOR
Respondent

Coram: Chief Justice Vincent Lunabek
Justice Bruce Robertson
Justice John von Doussa
Justice Oliver Saksak
Justice Christopher Tuohy

Counsel: Mr Nigel Morrison for the Appellant
Messrs Bernard Standish and Eric Molbaleh for the Respondent

Date of hearing: 27th November 2007
Date of judgment: 30th November 2007

JUDGMENT

On 20th May 2005, Mr Willie Solomon died as a result of injuries he sustained when he was attacked. Several people were charged in connection with his death including the Appellant who was charged with one count of premeditated intentional homicide contrary to Section 106(1)(b) of the Penal Code Act [CAP.135]. On 30th June 2005, he was committed to stand trial.

After many delays and difficulties, on 27th November 2006 the prosecution amended the charge to one under Section 107(d) of the Penal Code Act namely intentional assault which resulted in death and in respect of which Mr Withford was liable to 10 years imprisonment. The Appellant pleaded guilty. Following a sentencing hearing on the 1st December 2006, Mr Withford by way of a reserved judgment delivered on 3rd August 2007, was sentenced to an immediate custodial sentence of 4 years 8 months and 3 weeks.

Justice Bulu said that this was calculated on the basis of a starting point of 7 years. One third was then deducted for the guilty plea, 1 month was taken off for other mitigating features and as required there was an allowance which was expressed as being 2 years 2 months and 5 days in respect of time already spent in custody.

This is required by Section 51(4) of the Penal Code Act [CAP.135] which provides that a Judge on sentencing shall make an allowance for time already spent in custody.

When the matter was at call-over last week, Mr Withford who was unrepresented was advised that the Court on hearing an appeal against sentence has the power to increase the sentence and that he was at risk.

As the sentencing Judge noted, Mr Withford was fortunate that the prosecution had decided to withdraw the charge of premeditated homicide.

In the circumstances which were established, the offending had to be viewed as being as serious as any offending which could come within the section to which he pleaded guilty. Arguably the starting point of 7 years was manifestly inadequate.

As Mr Withford was unrepresented, the Court made a general request for help and Mr Blake and Mr Morrison indicated that they would attend upon Mr Withford. When the matter was listed for hearing an application was made to withdraw the appeal against sentence so that Mr Withford would not be in jeopardy of an increased sentence. Mr Morrison who appeared did draw to our attention that there appeared to be a miscalculation with regard to time which had already been spent in custody which was in fact 2 years 4 months and 2 weeks.

The Court however has been concerned that a fundamental problem had emerged. As demonstrated in this case and as will arise in any case in which a person has been in custody prior to sentence in respect of the charge upon which they are sentenced, there is a potential anomaly.

Under the new regime in the Correctional Service Act (No.10 of 2006) Section 51, every person is eligible for parole after they have served half of their sentence. Where a person has been in custody and the Judge takes that into account as required in the effective sentence imposed, it means that in respect of the period in custody prior to sentence the potential for parole is not available. If a person has been in custody for days or a few weeks then no serious injustice may arise. But in this case Mr Withford had been in custody for more than 26 and a half months.

We have difficulty in seeing how the clear words of section 51 can be avoided. The danger of injustice arising could be avoided if the Court was required under the statute to impose the sentence which it deemed appropriate, and for it to operate from the date upon which a person went into custody in respect of that charge. Then the parole entitlement would apply to the whole sentence.

Under the present arrangement, where there has been a substantial period in custody it is necessary for a Judge in assessing what the effective sentence should be to allow for the fact there is this potential for injustice to arise. The right to gain parole is not automatic. The Judge will have to make an assessment having regard to a person’s background, behaviour in prison, remorse, and the like in deciding whether an allowance is necessary because of this anomaly and what allowance should be made for it.

Notwithstanding that we remain of the view that the Supreme Court Judge was extraordinarily merciful in the approach which he adopted to the sentencing of this man, it is apparent that he did not turn his mind to the parole consequences which are involved in the application of the new statutory regime.

It would be wrong for us to leave that injustice without response even in the circumstances as we view them, when this man was in custody for so long before sentence.

To maintain the sentence which the Judge in his discretion determined should apply, but to recognise the very substantial period already served in respect of which there will not be the possibility of a parole reduction, we have determined that we must allow this appeal on this narrow technical ground alone.

Without entering into an assessment of the original sentence (as Mr Withford has withdrawn his appeal) we nonetheless intervene in a limited manner. We cancel the immediate custodial sentence of 4 years 8 months and 3 weeks and impose instead effective from the 3rd August 2007 (which is the date of sentencing in the Supreme Court) an immediate custodial sentence of 3 years and 7 months imprisonment.

DATED at PORT-VILA this 30th day of November 2007

BY THE COURT

VINCENT LUNABEK CJ
J. BRUCE ROBERTSON J
JOHN VON DOUSSA J
OLIVER SAKSAK J
CHRISTOPHER TUOHY J