Namuly v Public Prosecutor [2011] VUCA 25; Criminal Appeal 01 of 2011 (22 July 2011)

IN THE COURT OF APPEAL OF THE REPUBLIC OF VANUATU

(Criminal Appeal Case No 1/2011)

JERRY JEFFRY NAMULY
ANDREW JEFFRY NAMULY
Appellants

V

PUBLIC PROSECUTOR
Respondent

Hearing 18 July 2011

Coram: Hon Justice John von Doussa
Hon Justice Oliver Saksak
Hon Justice Daniel Fatiaki
Hon Justice Robert Spear
Hon Justice Paul Heath

Counsel: Jacob Kausiama for the Appellants
Simcha Blessing for the Respondent

Judgment: 22 July 2011

JUDGMENT OF THE COURT

Result

• The appeal against sentence by Jerry Jeffry Namuly was abandoned
• The appeal against sentence by Andrew Jeffry Namuly is dismissed
• Introduction
  

[1] On 11 February 2011, Jerry Namuly was sentenced to 14 years imprisonment for intentional homicide under section 106(1)(a) of the Penal Code Act [Cap.135]. At the same time, his younger brother Andrew Namuly was sentenced to 7 years imprisonment for inciting and intentional homicide under sections 35 and 106(1)(a) of the Penal Code Act [Cap.135]. In each case, the sentence was reduced by a further 5 months to reflect time spent on remand in custody.

[2] Both appellants appealed the sentence imposed on them. However, at the commencement of the appeal hearing, Mr Kausiama conceded that the sentence imposed upon Jerry Namuly was not manifestly excessive and formally abandoned that appeal.

[3] The Court then focused solely upon the appeal against sentence by Andrew Namuly on the sole submission that it was manifestly excessive.

Background

[4] There had been a long running dispute between the family of the deceased Johnny Nakuhu and the family of the Namuly brothers. Both families reside in Koromanu village in the Whitesands District on the island of Tanna. The land dispute had been resolved formally in favour of the deceased's family but there was ongoing resentment.

[5] A confrontation took place between Andrew Namuly and the deceased on the morning of Sunday 26 September 2010. The deceased had met up with 3 or 4 other men who had been gathering food. Andrew Namuly took exception to the fact that they had been gathering and eating honeycomb taken from the disputed land. Whether he had any justification for that attitude is of no significance. While an effort was made by the deceased's group to calm Andrew Namuly down, that did not appear to meet with much success and led to Andrew Namuly both brandishing his bush knife at the deceased and threatening to cut the deceased with his knife. Again, that is only of background value and no charges arose from that encounter.

[6] Andrew Namuly was persuaded to leave and he did so. However, his parting comment to the deceased was that he (Andrew Namuly) would wait for the deceased in the village and they would sort matters out "man to man".

[7] Shortly afterwards, a Mr Nawio rode up on his horse and informed the deceased and his friends that Andrew Namuly was going to burn the deceased's house down. The deceased, Mr Nawio and Mr Numan then hurried in to the village only to be met by Andrew Namuly and his older brother, Jeffery Namuly. Both of the Namuly brothers were armed with bush knives.

[8] From the outset of that encounter, the Namuly brothers were aggressive and confrontational with Jerry Namuly greeting the deceased and the other two men with "yu ia nao, tedei hemi taem blong yumitu (translation: so it's you, today is our day)". The deceased endeavoured to defuse the rather tense situation by saying this was just about honey and that they should sit down and talk matters through. This benign approach was met by Jerry Namuly swinging his bush knife at the deceased. The first slash of the deceased was avoided however the second blow sliced deeply into the deceased's left shoulder and also cut two of his fingers. From that point, the deceased was seriously incapacitated as a result of those injuries and unable to flee.

[9] Of significance to this appeal is that Andrew Namuly then advanced on the deceased with the intention of continuing the attack on him with his bush knife. However, he was put off by his older brother telling him to wait his turn.

[10] Andrew Namuly then turned his attention to Mr Numan who quickly fled with Andrew Namuly in pursuit. Fortunately, Mr Numan was able to escape.

[11] The deceased dragged himself towards some bamboo trees but Jerry Namuly went after him and cut his neck so deeply that the deceased was virtually decapitated. Notwithstanding that the deceased was clearly dead by this stage, Jerry Namuly continued his attack by cutting and slicing the deceased's backside and face.

[12] Somewhat curiously, shortly thereafter Jerry Namuly called the local police officer, explained what had happened and asked that the police come and pick Andrew Namuly and himself up.

[13] Both the Namuly brothers made full confessions to the police and pleaded guilty at the first reasonable opportunity.

Consideration

[14] Without question, the attack on the deceased was brutal, frenzied and sustained. Furthermore, we consider that the circumstances of this case, as we apprehend them, would have well justified a lead charge of premeditated intentional homicide against Jerry Namuly. We express our surprise that Andrew Namuly was only charged with inciting or soliciting the intentional homicide directly undertaken by Jerry Namuly. The overall events of that day, and particularly the way in which Andrew Namuly conducted himself, would have indeed justified a joint lead charge against both Namuly brothers of premeditated intentional homicide.

[15] Be that as it may, the issue is whether the sentence imposed on Andrew Namuly was manifestly excessive in all the circumstances in relation to the charge of which he stands convicted.

[16] Jerry Namuly was 24 years of age and Andrew Namuly 19 years of age at the time of this crime. Neither brother had any previous convictions. Furthermore, it appears that they were held in good regard in their community.

[17] The sentencing Judge considered that Jerry Namuly's offending justified a starting point with aggravating circumstances relating to the offence of 18 years imprisonment against the 20 year maximum. That was reduced by 4 years to 14 years imprisonment to reflect the guilty plea, that he was a first offender and otherwise of good character.

[18] In relation to Andrew Namuly, the sentencing Judge considered that a starting point of 10 years imprisonment was required to reflect the lesser role identified by the specific charge and the factual circumstances. The sentencing Judge considered that the inciting or soliciting of the intentional homicide undertaken by Jerry Namuly was aggravated in respect of Andrew Namuly:-

"Not only you incited the commission of the offence of intentional homicide, but you attempted to use your bush knife to cut the deceased and you used your bush knife to chase other persons and you used your bush knife to frighten the deceased before the first defendant killed the deceased".

[19] In the Supreme Court, it was noted that Andrew Namuly was 19 years of age, he was married with a 7 month old pregnant wife, he was unemployed although he worked as a subsistence farmer and that he enjoyed good relationships within the community. He had never been to school, he was otherwise of good character, he had no previous convictions, he cooperated fully with the police and he pleaded guilty at the first reasonable opportunity. Andrew Namuly also apologised to the Court for his offending and offered to participate in a customary reconciliation ceremony. His sentence of 7 years imprisonment reflected a credit of 3 years for the totality of those personal mitigating circumstances.

Appellant

[20] Mr Kausiama confined his attention to the role that Andrew Namuly played in the actual attack on the deceased. Mr Kausiama argued that Andrew Namuly's involvement was minimal, that he personally and directly inflicted no harm on the deceased and that this had not been recognised sufficiently by the sentencing judge. It was his submission that the sentence of 7 years' imprisonment was manifestly excessive in all the circumstances and that the least restrictive outcome should have seen a sentence of between 5 and 6 years being imposed.

Respondent

[21] Mr Blessing for the State took issue with that submission. In particular, Mr Blessing contended that Andrew Namuly was the person who had obviously enlisted the assistance of his older brother and that Andrew Namuly was standing with his older brother, both armed with bush knifes, when they confronted the deceased and the other two men as they entered the village. Furthermore, it was clear from his actions that Andrew Namuly was fully and willingly involved in the attack on the deceased save only for Jerry Namuly insisting upon delivering the actual blows.

Consideration continued

[22] We consider that Mr Blessing's treatment of the events of that day is realistic. It is clear that Andrew Namuly was standing with his brother against the deceased and the other two men. We note Andrew Namuly's comment to his Probation Officer that he was standing behind his older brother, that he was scared and that he could not control his older brother. However, that is entirely at odds with the way in which Andrew Namuly conducted himself that day both when he first encountered the deceased and the other men outside the village and later in the village. He had obviously engaged his brother to stand with him when the deceased returned to the village, he advanced on the deceased with the obvious intention to strike him with his bush knife only to be diverted from that task by his brother, and he then attacked Mr Numan.

[23] As we have already observed, but it is worthy of repetition, both Namuly brothers can count themselves very fortunate that they were not charged jointly with premeditated intentional homicide which carries a maximum sentence of life imprisonment. Intentional homicide under s 106 (1)(a) carries a maximum sentence of 20 years imprisonment.

"106. Intentional homicide

(1) No person shall by any unlawful act or omission intentionally cause the death of another person.

Penalty:

(a) if the homicide is not premeditated, imprisonment for 20 years;

(b) if the homicide is premeditated, imprisonment for life.

(2) For the purpose of subsection (1), premeditation consists of a decision made before the act to make a homicidal attack on a particular person or on any person who may be found or encountered."

[24] Although Andrew Namuly is for sentence for inciting or soliciting the intentional homicide directly carried out by his older brother, he remains liable to the same maximum sentence as his brother; that is, 20 years' imprisonment.

"35. Inciting and soliciting commission of offence

It shall be unlawful to incite or solicit another person to commit any offence, whether or not that offence is committed. A person guilty of inciting or soliciting an offence may be charged and convicted as a principal offender"

(emphasis added)

[25] There is accordingly no restriction required by statute to reflect the differing roles played by the two Namuly brothers notwithstanding that they face somewhat different charges. For the reasons that we have already given, we consider that the 10 year starting point to reflect all circumstances relating to the offending by Andrew Namuly was lenient and that a starting point of at least 12 to 13 years would have been unassailable.

[26] It could have been argued, but it was not, that from the 10 year starting point adopted by the sentencing Judge, credit for personal mitigating circumstances and the early guilty plea should have brought the appropriate sentence down to under 6 years' imprisonment. We could accept that if we considered that 10 years was the appropriate starting point. However, we consider that a more appropriate starting point of 12 years, which we adopt for this exercise, would still result in an end sentence of at least 7 years' imprisonment when those personal mitigating factors are applied. Accordingly, we do not consider that the sentence imposed on Andrew Namuly was manifestly excessive. It therefore follows that his appeal must be dismissed.

Conclusion

[27] We note that the appeal against sentence by Jerry Namuly was abandoned.

[28] We dismiss the appeal against sentence by Andrew Namuly.

DATED at Port Vila this 22nd day of July, 2011.

BY THE COURT

Hon. Justice J. von Doussa

Hon. Justice O. A. SAKSAK

Hon. Justice D. V. Fatiaki

Hon. Justice R. L. B. Spear

Hon. Justice P.R. Heath