Tari v Public Prosecutor [2011] VUCA 26; Criminal Appeal 02 of 2011 (22 July 2011)

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

Criminal Appeal Case No. 02 of 2011

BETWEEN:

KEVIN TARI
Appellant

AND:

PUBLIC PROSECUTOR
Respondent

Coram: Hon. Vincent Lunabek, Chief Justice
Hon. J. von Doussa J
Hon. O. Saksak J
Hon. D. Fatiaki J
Hon. P. Heath J

Counsel: Mr Paul Jerry Boe for the Appellant
Mr Leon Malantugun for the Respondent

Date of hearing: 18^th July 2011 Date of decision: 22^nd July 2011

JUDGMENT

Introduction

1. On 16th May 2011 the appellant was sentenced by Spear J in the Supreme Court to imprisonment for 1 year 8 months and 19 days. He was charged with an offence of intentional assault causing injuries of a permanent nature contrary to section 107(c) of the Penal Code Act [CAP.135] ("the Act") which carries a maximum penalty of 5 years imprisonment. Two of the appellant's brothers had also been charged jointly with aiding under section 30 of the Act. On 2nd April 2009, Dawson J sentenced one of the brothers, Albert Tari, to 6 months imprisonment but suspended the sentence for a period of 12 months. In addition a sentence of community service of 100 hours was imposed. There has been no appeal against that sentence. To date the charge against the other brother, whose present whereabouts is not known, has not been disposed of.

Appeal and grounds

2. The appellant appeals against his sentence on the following six grounds –

(a) The sentencing Judge had placed too much weight on the aggravating features.

(b) Insufficient weight was placed on the mitigating factors such as guilty plea at first opportunity, lack of previous criminal convictions, customary compensatory reconciliation, clear remorse and the long delay.

(c) There was no proper consideration of alternatives to full time imprisonment.

(d) No opportunity was given for a pre-sentence report to have been submitted in respect to the appellant.

(e) Insufficient weight was placed on the prospects of rehabilitation of the appellant.

(f) The sentence was manifestly excessive.

Facts

3. These are the relevant background facts. They were not disputed before Spear J. On 25th December 2005 the appellant and his brothers were drinking at the Melanesian Hotel Bar. After sometime they left the bar and walked back up to the main road linking the Au Bon Marche No.2 Supermarket and the Tropical Market. Here the appellant and his 2 brothers met the victim and his friend who were also walking towards the Tropical Market. They said "Bongarea" or "goodnight" to each other and then continued to walk on. A little while later the victim and his friend heard people running towards them and those people began to assault them. Suddenly a bus stopped nearby and 3 men who claimed to be policemen got out and stopped the fight. They warned the appellant and his brothers to go home. However after the bus had left, the appellant and his two brothers gave chase again and caught up with the victim and his friend near the gate to the Parliament House. Here the appellant and his brothers began fighting the victim and his friend again. The victim's friend defended himself and managed to escape. The victim was however struck by the appellant with a bottle to his left eye and was seriously injured. He was hospitalized and has been left with a serious permanent injury. He has lost much of the sight in his eye.

Judgment under Appeal

4. The sentencing Judge commenced his sentencing remarks by saying:-
   

"You pleaded guilty back in 2009. The reason that you have not been sentenced before now is because you absconded on bail and that you have been on the run (it would appear) since 20 February 2009 when warrants to arrest you and your brother Gibson Tani were issued".

5. After reciting the facts of the case the Judge said that he did not have a sentencing report as a warrant of arrest was issued after the plea of guilty was entered, and the appellant had not been seen again until his arrest in May 2011. The Judge noted that Mr Molbaleh, who appeared for the appellant, had taken instructions from the appellant who then requested the Judge to proceed without such a report, and not to delay the matter further. The appellant informed the Court through his counsel that he did not consider a pre-sentence report would change anything. Whilst the Judge did not have a sentencing report specific to the appellant, he did have a copy of a pre-sentence report which had been before Dawson J when Albert Tari was sentenced. That report gave some details of a reconciliation ceremony which had been performed between the family of the three defendant brothers, and the victim's family, and the Judge referred to that ceremony.
   
6. The Judge observed that if the matter was simply an attack by three men on two other men, a sentence of 12 months imprisonment could be considered as the starting point for mindless street violence without consequences, and that an allowance could be given for about 3 months for the reconciliation ceremony and perhaps another 3 months for the plea of guilty. However the Judge said:-
   

"Your position is different because you took out a weapon and so the level of violence escalated substantially through you.

A glassing incident such as this requires the Court to adopt a starting point of 3 years imprisonment. There is nothing to suggest that either of your brothers had weapons or were encouraging you to use a bottle as a weapon. So this relate solely to you."

7. The sentencing Judge considered there were no reasons to uplift the starting point to a higher level, and turned then to consider how much should be allowed for the reconciliation and other mitigating circumstances. For the reconciliation ceremony he allowed a discount of 8 months. As to a discount for the appellant's plea of guilty the Judge said:-

"You would normally expect to receive a discount of 12 months for your early guilty plea against a sentence of 3 years. However, I prune that back to 6 months because you took yourself out of the Court system (or at least you have attempted to do so) by running away and that really makes me question whether you are truly remorseful"

8. These discounts reduced the starting point of 3 years to 22 months imprisonment which the sentencing Judge considered appropriate. The Judge was not prepared to suspend the sentence for the reason, he said that the appellant ran away and left the matter outstanding for over 2 years. Finally as the appellant had spent 41 days in custody the Judge directed that 41 days be deducted from the sentence of 22 months imprisonment.

Consideration

9. We consider the grounds of appeal in the order in which they are addressed in the notice of appeal. Did the sentencing Judge give too much weight to aggravating features? The appellant's attack was unprovoked. It was persisted in after police officers had endeavoured to calm the situation. It involved a serious level of violence with the use of a weapon, and led to serious permanent injury. The sentencing Judge used the expression "a glassing incident" in giving his reasons. This expression normally relates to the use of broken glass which has the potential to cause serious lacerations. Fortunately in this incident the bottle used by the appellant did not break. Nevertheless it had the potential to do so, and we consider the Judge was correct in treating the use of a bottle as a serious aggravating circumstance.

10. In our opinion the starting point of 3 years adopted by the Judge was appropriate and reflects no error.
    
11. The next ground of appeal contends that insufficient weight was placed on mitigating factors. On the weight to be given to the plea of guilty, this Court had the benefit of information which was not drawn to the attention of the sentencing Judge. Unfortunately the Supreme Court House had burnt down, on 7 June 2007, whilst the appellant's matter was pending before the Court. The sentencing Judge was left under the impression that the appellant did not plead guilty until 2009, more than 3 years after he was charged. This Court was informed from records available to the Public Prosecutor's Office, that the appellant and his brothers pleaded guilty on their first arraignment before the Supreme Court on 7 February 2006. Then followed many scheduled and some unscheduled hearings. Adjournments occurred for reasons which seem to have been based on the convenience of the Court, and not on any conduct of the appellant. The appellant was present at hearings initially set for sentence but which were in the event adjourned on 31 May 2006 and 1 August 2006. There were further hearings on 26 October 2006, 26 February 2007, 12 November 2007 and 9 April 2008. At the hearing on 26 February 2007 the records indicate that the defendant was not present although he was represented by counsel. The records are incomplete on the other dates as to who attended and who did not.
    
12. In November 2008 a notice of sentence was issued by the Registrar, and the matter came on before Dawson J on 25 November 2008 when it was noted by the Judge that the 3 defendants were not in Court for sentencing but there was no proof of service filed. The Judge considered that the Defendants would not necessarily be aware that they were due to appear. The matter was adjourned to 16 December 2008. On that occasion Dawson J was informed that the probation service had been unable to locate the appellant and his brother Gibson, and a warrant for their arrest was issued. Then followed other warrants which were conveyed to the police in Ambae where it was understood that the appellant was then residing. He was not ultimately arrested until May 2011 which brought him before the sentencing Judge to be dealt with.
    
13. On the appellant's behalf it is submitted to this Court that the appellant remained in Port Vila from the date of his plea on 7 February 2006 until 1st December 2008 awaiting sentence. However at that time his brother offered him employment in Ambae and he decided to proceed there to take up the employment. The Court was informed that in Ambae he was living openly in the community and almost everyday was in the vicinity of the local police station. At no time was he seeking to evade arrest, and, it seems that he was unaware that there was a warrant in the hands of the police. Regrettably it seems this information was not made known to the sentencing Judge. Counsel for the Public Prosecutor submitted to this Court that the appellant was to blame for the delay as he did not regularly enquire of the police and prosecution service about his case. However, in all circumstances we consider the sentencing Judge, placed too much weight on the appellant's responsibility for the delay. We intend no criticism of the sentencing Judge: unfortunately he had not been fully informed by the submissions of counsel.
    
14. With the benefit of this additional information, not before the sentencing Judge, we consider that the appellant should have received a greater discount than he did for his early plea of guilty, and that he should not suffer a loss of discount on the ground of deliberate conduct on his part to evade or delay the sentence.
    
15. This Court was also given further information about the custom ceremony in addition to that which was made known to the sentencing Judge through the pre-sentence report on the file of Albert Tari. The additional information was contained in a lengthy report on the custom reconciliation and custom settlement which, it seems, was placed on the Court file by counsel acting for the defendants for the purposes of a Court hearing on 31st May 2006. Detailed submissions were then made on behalf of Kevin Tari and his two brothers, but unfortunately the Court did not proceed to sentence the three defendants on that occasion. These submissions and accompanying documents on the Court file were destroyed in the Supreme Court fire, but a copy was produced to the Court of Appeal by the Public Prosecutor's Office.
    
16. The custom ceremony was a substantial one, as was the custom settlement. The settlement involved the passing of items with the monetary value of up to VT 132,500 on the part of the appellant, a substantial sum which would have been a considerable burden on him. Again with the benefit of additional information that was not before the sentencing Judge, we consider that the reconciliation and settlement should attract a greater discount than the 8 months suggested by the sentencing Judge. In our opinion an appropriate allowance in this case would be a discount of 12 months from the starting point of 3 years imprisonment giving a balance of 2 years. From this we consider there should be a further discount of one third to reflect the plea of guilty on the first arraignment in the Supreme Court. These discounts lead to a sentence of 16 months imprisonment which we consider to be an appropriate head sentence for the offending in this case.
    
17. The next ground of appeal challenges the refusal of the sentencing Judge to suspend the sentence of imprisonment. Although the Judge in his sentencing remarks indicated that he was influenced by his belief that the appellant had "ran away and left this matter outstanding now for over 2 years" we do not think that this was the sole reason why the sentence was not suspended. More importantly, in our opinion, was the seriousness of the offence. Where an assault involves unprovoked violence and causes permanent serious injury an immediate custodial sentence is appropriate. Although the sentencing Judge did not specifically record that the appellant had no previous convictions, there is no reason to suspect that this mitigating circumstance was overlooked. Even though this was a first conviction, we think the seriousness of the offence makes a suspended sentence inappropriate.
    
18. The next ground of appeal complains that the appellant had no opportunity to obtain a pre-sentence report. It is apparent from the sentencing remarks that this is not correct. The appellant was given the opportunity and declined to take it up. With a benefit of hindsight, such a report may have solicited more accurate information about the reason for the delays in the case, but the reasons for the delay have now been brought to the attention of this Court, and taken into account by this Court.
    
19. The appellant's contention that insufficient weight was placed on the prospects of rehabilitation raises again considerations that are appropriate to be taken into account in deciding whether or not the sentence of imprisonment should be suspended. For the reasons we have given we do not think this is a case where suspension is appropriate.
    
20. Finally there is a general submission that the sentence was manifestly excessive. As we have decided to interfere with the sentence imposed in the Court below and to substitute a new sentence based on our assessment of the facts, there is no occasion for us to further consider this ground.
    
21. There is one further matter which requires consideration, although it is not raised as a ground of appeal. The appellant had been in custody on remand for 41 days before he was sentenced. If the appellant had served this period of time in detention after sentence, he would receive the benefit of s.51 of the Correctional Services Act (10 of 2006), and become eligible for parole after having served half of his sentence. The fact that he does not receive the potential parole in respect of the time in custody before sentence is a matter to be taken into account in determining what deduction on account of that time should be made from the sentence of imprisonment otherwise to be imposed. See Withford v. Public Prosecutor [2007] VUCA 20. Simply to deduct 41 days from the sentence did not address the issues arising under section 51 of the Correctional Services Act.
    
22. In making allowance for the loss of the potential for parole, it must be remembered that parole is not automatic, and if the deduction for the period in pre-sentence custody is simply allowed at double the number of days served, there is a risk that too great a discount will be allowed. However the appellant is a first offender, and there is no reason to suspect from his antecedents that he is not a candidate for parole. In the present case we consider the sentence of 16 months imprisonment should be further reduced by 2 months and 2 weeks to reflect the time spent in custody before sentence.
    
23. In the result the appeal should be allowed, the sentence of imprisonment imposed by the sentencing Judge set aside, and in lieu a sentence of 13 months 2 weeks and 3 days should be imposed. That sentence will run from the date upon which the original sentence was imposed, namely 16 May 2011.
    

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

BY THE COURT

Hon. V. Lunabek, Chief Justice

Hon. J. von Doussa, J

Hon. O. A. Saksak, J

Hon. D. Fatiaki, J

Hon. P. Heath, J