Pakoa v Public Prosecutor [2008] VUCA 7; Criminal Appeal 02 of 2008 (30 April 2008)

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

CRIMINAL APPEAL CASE No.02 OF 2008

BETWEEN:

JOHN AMOS PAKOA
Appellant

AND:

THE PUBLIC PROSECUTOR
Respondent

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice Bruce Robertson
Hon. Justice Oliver Saksak
Hon. Justice Hamlison Bulu
Hon. Justice Christopher Tuohy
Hon. Justice John Mansfield

Counsel: Mr. Hillary Toa for the Appellant
Mr. Bernard Standish for the Respondent

Date of hearing: 24 April 2008
Date of judgment: 30 April 2008

JUDGMENT

On the 11th January 2002, John Amos Pakoa was sentenced to 15 years imprisonment in the Supreme Court at Port-Vila on 3 charges to which he had pleaded guilty.

There were two charges under Section 106(1)(a) of the Penal Code Act [CAP.135] of intentional homicide but without the aggravation that it was premeditated. They referred to Mr Pakoa killing his wife and his son. There was a further charge of attempted homicide in respect of his daughter.

Charges of premeditated intentional homicide and attempted premeditated intentional homicide and intentional assault were not proceeded with.

On each of the homicide charges Mr Pakoa was sentenced to 7 years and 6 months imprisonment. These terms were to be served cumulatively. On the attempted intentional homicide he was sentenced to 4 years imprisonment which was to be concurrent. So the effective sentence was 15 years imprisonment.

Although the exact words of Section 94 of the Criminal Procedure Code [CAP.136] were not used, the right to appeal was mentioned and it is to be noted that at that time Mr Pakoa was represented by counsel, Mr Toa, so no injustice could have arisen from that oversight.

Mr Pakoa seeks to appeal, not within the 14 days provided for, but more than six years later.

Section 201 of the Criminal Procedure Code [CAP.136] sets out the requirements which have not been complied with but the substance of his case can be distilled from a morass of words.

In his almost 60 grounds upon which he seeks to appeal his sentence the Appellant never really comes to terms with the problems of delay nor provides an explanation for it.

We have however turned our attention to the possible merits of this appeal because it is a lengthy sentence and the Court’s overwhelming duty is to ensure that justice is done.

We cannot but conclude that this appeal is wholly misconceived.

Despite the gross mass of words used and the lengthy catalogue of protest, there appear to be five categories of complaint.

The first is that there was a relationship between the sentencing Judge and the wife of Mr Pakoa. That is a most serious allegation to be made. We spoke with Mr Toa about his duties as counsel in advancing such a proposition solely on the basis of the perception of his client and without any independent inquiries being undertaken. If the matter had any validity it would not go to the question of the appropriate sentence but would mean that the entire sentencing process was totally flawed and needed to be started again. There is no appeal against conviction and nothing to support this allegation, which we accordingly put to one side.

Secondly there is a variation of this theme in the allegation which he makes of sexual impropriety by his late wife with more than 80 named individuals. Many of them are persons holding high offices within the Republic. It is suggested that this behaviour and associated comments which the deceased had made to him about his sexual prowess when compared with the other people constituted some form of provocation.

Instructive material was provided to the Court in respect of problems between the Appellant and his wife early in 2001 make clear that these perceptions have been in the mind of the Appellant long before the killing occurred. There was no new or causative revelation and on the facts proved, there is no basis for lessening his culpability.

Mr Pakoa’s assertion that he was so shocked and disabled as the result of what occurred that he could not turn his mind to these facts is simply unbelievable in light of the documentation which is available.

There is a medical report from Doctor Robert Grace as to the comments and reactions of Mr Pakoa at that time which show he was perfectly in control. There are two fundamental problems for the Appellant. Unfaithfulness by a spouse (if it were true) is never an excuse let alone an explanation for a brutal killing. In this case there is the other factor that an innocent child was killed and a serious attempt made to kill another. They were totally without blame in the bitterness between the parents.

There is nothing to suggest that there was anything of which the Court was advised (or which should have been raised in this regard at the sentencing) which could have made any difference to the approach which was adopted.

Thirdly there is a generalised complaint that from time to time people in this jurisdiction have been the beneficiaries of a Presidential Pardon. How any Court in any way could reflect that in the way the sentencing process is to be carried out in respect to this man was never articulated by Mr Pakoa or his counsel.

Mr Toa accepted that these pardons were acts of the executive Government. They have been the subject of adverse comment and criticism by this Court over the years. The new Correctional Services regime with particular provisions with regard to early release and parole are in part a response to the Court’s concern. The fact that pardons might happen were not factors to be weighed or assessed in any way. Under the Correctional Services Act No.10 of 2006 there is now a formal regime whereby all prisoners have a right to apply for release on licence. Despite the assertion made by Mr Pakoa that he had been told by the sentencing Judge that he would be eligible for release after he completed one third of the sentence, an investigation of the sentencing notes shows that that was never mentioned. It was not the law in any event. Mr Pakoa is now the beneficiary of the regime whereby after half of his sentence he will have an entitlement for consideration. There is no substance in the issues about early release.

The fourth cluster relates to a reconciliation ceremony which took place years after sentence. The first question is how could a matter in the future be reflected in the determination of the proper sentence? When he was before the Supreme Court there had not been any reconciliation ceremony so that could not be taken into account. It is a factor which may be relevant to the issue of early release, but is not otherwise a relevant factor.

Finally there were general complaints that he has been mistreated while in prison and that somehow that should be reflected in the length of the sentence. Merely stating that proposition indicates how fundamentally misconceived it is. That is not a matter which the sentencing Judge could have known of, contemplated or assessed. If there have been breaches of his rights then there are alternative forms of relief available to Mr Pakoa but they do not go to the question of the length of sentence.

When one gets behind all these extraneous matters which were at the forefront of both the appeal and the leave to appeal the sentence, one comes to look at the position of what in fact Mr Pakoa has been sentenced for.

The approach to a sentencing appeal is fully discussed by this Court in Public Prosecutor v. Gideon, [2002] VUCA 7. We adopt that analysis.

The sentencing Judge expressed his reasons for the approach he adopted when he said:-

"This was a tragic event calculated from a very greedy and jealous person. In jealously guarding his wife, went beyond the limit by killing her. He had no sense of respect to life of a human being. The most tragic killing is hen he killed George and attempted to kill Annabelle not parties to their marital differences. For the prisoner, as head of the family unit, guardian, and providing security to the family, the wife and children looked to him for protection. To abuse it, sends message of fear, mainly within the children minds of the tragic event of the 28th July 2001.

This is a serious case, as the general public too have raise concern about the prisoner’s attitude. There were public outcries over the manner of killing. The Court is the people’s Court and the Court must also take heed of the general public concern. The type of sentence must also be seen of restoring some confidence in the family unity and the general public at large in Vanuatu. In sentencing you I have taken into consideration the period spent in custody and the doctors report. In your case there are no other form of suitable penalty that I can impose to match the crime you committed, but to impose a severe custodial sentence as a punishment. Furthermore, the sentence that I will impose will be in no way near compensating the death of Helly and George. The only way to compensate them is to give back their life, which is quite impossible."

We do not accept that there is anything which has been advanced on his behalf which is relevant, which would suggest that the effective sentence of 15 years was outside the properly available sentencing discretion. This was an appalling series of events involving the loss of two lives and serious injury to another. Even allowing for his pleas of guilty and previous good character, the sentence was clearly within range and the appeal could never succeed on the merits. No proper grounds are advanced to cover the inordinate delay which could justify allowing the appeal to be heard at this late stage.

Leave to appeal is refused.

DATED at Port-Vila this 30th day of April 2008

BY THE COURT

Hon.Vincent LUNABEK CJ
Hon. Bruce ROBERTSON J
Hon. Oliver A. Saksak J
Hon. Hamlison BULU J
Hon. Christopher TUOHY J
Hon. John MANSFIELD J