George v Public Prosecutor [2009] VUCA 32; Criminal Appeal Case 19 of 2008 (30 April 2009)

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

CRIMNAL APPEAL CASE No.19 OF 2008

BETWEEN:

AWEN GEORGE
Appellant

AND:

PUBLIC PROSECUTOR
Respondent

Coram: Justice John von Doussa
Justice Oliver Saksak
Justice Ronald Young

Counsel: Mr Chris Bennett for the Appellant
Mr Bernard Standish for the Respondent

Hearing date: 20 April 2009
Judgment: 30 April 2009

JUDGMENT

On the evening of 6 June 2007 the Appellant, together with an associate, Mr Atuary burnt down the Supreme Court building, the Island Court building and the building housing the Department of Geology, Mines and Water Resources. Three weeks later the Appellant confessed the crime to the police and identified his co-offender as Mr Atuary.

While in custody awaiting sentence the Appellant escaped and committed a serious rape of a young woman. He was sentenced to nine years imprisonment for this rape. Later he was sentenced to six and half years imprisonment cumulative upon the nine years for the arson of the building and concurrent sentences of two years imprisonment for unlawful entry and one month imprisonment for theft and damage to property charges.

The Appellant in support of his appeal against sentence says:

(a) the sentence for the arson was manifestly excessive because insufficient allowance was given by the Judge for the Appellant’s confession and assistance to the police;

(b) the total sentence of 15½ years for the rape and arson were manifestly excessive having regard to the totality principle, the Appellant’s relative youth, and his crime free record until this offending.

BACKGROUND FACTS

The Judge described the facts which gave rise to the charges of arson and unlawfully entering the building in this way:

"2. The two of you met up in the evening of 6th June 2007 when you smoked cannabis and drank kava. You had previously discussed and agreed to set fire to the Supreme Court building. You wenvicinity of the buie building and waited until about 1 am when the street lights were turned off for the night. You tntere builby remo remo removing a number of louvre windows and climbed into the Court House.&#16. Once inyou set a number ofer of fin a number of locations, both on the first floor and on the ground floor. One fire ware was lit under a Judge’s bench.&#1oth of you participated in the Arson, one carried matches, hes, the other a lighter. Mr. George remo Vanuatu Natu National Flag within the building and carried it away with him and set fset fire to it some hours later.

3. The Court house wasoden building, which contained wooden furniture and large arge amounts of paper and the fire spread rapidly. Nearby residents hnoises oses of breaking glass and witnessed the spread of fire. The fire services were notified and attended but to no ava160; Their efforts were limited to restricting the fire to the Supreme Court building, the the Island Court Building and the buildinsing the Department of Geology, Mines and Water Resources.&ces.

4. About 11 am on 7th June 2007 you both returned to the vicinity of your crime where there were hundreds of other citizens in the vicinity shocked by the total destructiothe buildings concerned.

5. I am I am I am also going to set out the amount of damage caused by you in this offending. The fire that you starteplcomplete destroyed the Supreme Court building and the building in which was housed the Department of Geology and Mines and Water Resources. The total loss assult of t of the fire is inestimable. The contents within the bnildings were also totally destroyed. The Court house was a uninue and treasured building that had historic significand wa landmark in Port Port Vila and the country of Vanuatu. It had archiral significnificnificance and also enormous symbolic impor as the headquarters of thef the judicial arm of Government and the Judiciary in the Republic of Vanuatu. The attack on the Couuse affected the thinking aing and attitudes of everyone in Vanuatu. The contents of the Court house including all court files,iture, computers, office equipment, stationary, judge’s equipment, library textbooks,ooks, official certificates, wills and othcuments were all lost. In the aath of the fire tire tire the judicial system in Vanuatu has been adversely affected. The Court7;s files had to d to be recreated through the use of other Government Departments and private lawyer’s records. Casve belayed because of t of the destruction caused by the fire. As a t the Court ourt admi administration and the Court rooms thves have been separated with temporary court rooms still being used which causes significanficant disruption to the administration ofice in Vanuatu. "

The loss from the fire was estimated by Registrar of the Court at over 2 billion Vatu and for the Department of Geology over 1 billion Vatu.

CONFESSION BY THE APPELLANT

The Appellant’s submission is that from a starting point of 10 years imprisonment (the maximum) the Judge deducted three and half years which insufficiently recognised that without the Appellant’s confession and help this crime may not have been solved by the police. The Appellant says a deduction of up to 1/3 for an early guilty has been available in the Vanuatu Courts. Thus the 35% reduction given for the Appellant’s guilty plea and confession gave little if any recognition to the Appellant’s assistance in solving this serious crime.

We are satisfied the Judge properly took into account both the Appellant’s early guilty plea and his assistance to the police. The Appellant’s confession was of considerable assistance to the police in quickly solving this crime. There was however other evidence which pointed to the involvement of the Appellant’s co-accused and likely ultimately would have pointed to the Appellant.

However the Judge in his sentencing remarks recognised the Appellant’s actions. He said:

"Due to extremely high aggravating factors relating to your offending it is my view the starting point for sentencing you for the charge of Arson is the maximum of 10 years imprisonment. I have to take into account the mitigating factors, and for you Mr George, in particular that you gave yourself up to the police. You are convicted and sentenced to 6 and half years imprisonment."

No criticism can be properly made of the 10 years starting point given the extreme seriousness of this offending. The Appellant has not convinced us that the Judge made any error of principle in this approach to the assistance given by the Appellant to the police. The discount of 35% for an early guilty plea and assistance to the police was well within the range available to the Judge.

TOTALITY

The Appellant submits that the Judge failed to take into account the "principles of totality of sentence" when he made the six and half years sentence cumulative on the nine year sentence the Appellant was serving for the rape.

The Appellant says, had the Judge considered this totality principle, and had he taken into account the Appellant’s relative youth (25 years of age) and lack of any previous criminal record a small further reduction in the arson sentence would have been justified.

In his sentencing remarks the Judge said:

"Mr George your sentence of 6 years and 6 months is reduced to 6 years and 4 months to take into account 2 months you have already spent in custody. No further reduction was made due to the totality of your sentences. The rape conviction of Mr George is a distinctly separate offence from this offending and the totality of your sentencing in conjunction with this sentence in my view is just and proportionate."

It is clear the Judge did consider the totality of the sentences and concluded the total sentence of 15½ years was justified by the circumstances. These were two quite separate offences committed sometime apart. They were of a completely different nature. Both were in their own way extremely serious offences. We agree with the Judge that no further reduction of the overall sentence of 15½ years was required.

The appeal against sentence is therefore dismissed.

DATED at Port-Vila this 30th day of April 2009

BY THE COURT

John von DOUSSA J
Oliver SAKSAK J
Ronald YOUNG J