CR No. 02 of 1998
SER">SENTENCE
This was a trial against the Defendant where the Defendant was found guilty of the
ence as prescribed under Section 107 (d) of
the Penal Code Act. The offence carries a
maximum period of 10 years.
After finding the Defendant guilty on the whole of the evidence and after listening to
counsel as to sentence, this Court is
to give its decision on what is an appropriate
penalty against the Defendant. I am mindful of the fact that sentence imposed
by the court
can be either deterrence sentence, retributory, probationary, or cautionary.
This case involved the mother, father, now the deceased, and the son who’s now the
Defendant.
There were no bad motives in committing such crime as the only reasons was that the
Defendant was defending his mother. Even
at the time of committing the offence, the
Defendant was staying and living with the deceased. Even though the mother and the
father
(deceased) were living separately due to their ups and downs in their marriage lives,
there were no evidence adduced
to suggest that the Defendant was in bad term with the
father.
In my decision earlier, I mention that provocation is not a complete defence in this
jurisdiction and if there is provocation
then this is taken into consideration in
mitigation of sentence as diminished criminal responsibility. I accept in this case
that
the Defendant was provoked, but that provocation offered to him by the deceased was not
significant at all to warrant
further assaulted on him after he had fallen down. I accept
that when he punched the deceased and he fell down then he did that
in a heat of the
moment and before his patient could cool down and if he had stopped there, then, as stated
in my decision
earlier that the Defence of provocation would be also available in
consideration as to sentence. The defence of provocation
in this case which to satisfy me
are:
1- That there was provocation offered to him,
2- There was a lost of control and
3- The retaliation was proportionate to the provocation offered.
As stated earlier, the Defendant satisfied me of the first two elements but fail to
satisfy me on the third element. Nevertheless,
the law recognises that he was at that time
was acting in defence of his mother from an unlawful act that was administered to
her by
the father and Section 23 of the Criminal Procedure Code allows him to exercise that as,
he was her immediate son or this will also be applicable to any other person acting in
such relationship.
There were three reference tendered to the Court with no objection as to the good
character of the Defendant in his community.
Even the Defendant broke into tears when
giving evidence which I believe that, he regretted very much that he should not have
done
what he did and further more it is not easy to loose his real father in that way.
As agreed by both counsels that there were some traditional settlements already taken
by both parties and their relatives and
a list of the things that was exchange in the
ceremony were also considered. However, the prosecutor informed the Court that
this was to
clear the air between their relatives. Again, this is taken into consideration in the
mitigation. However,
this shall not be used by the Court as placing much weight on
reduction of sentence.
In sentence, this Court take into consideration that the circumstance of the case does
not warrant a very severe penalty to be
imposed by the court and consider a light
custodial sentence as appropriate penalty. For these reasons I will imposed a sentence
of
fourteen months as the appropriate sentence in this case. The period in custody shall be
deducted from this sentence
which the defendant will now serve a period of six months and
three weeks.
DATED AT PORT VILA this 4th Day of August 1998.
R. MARUM MBE
JUDGE
Ms. Kayleen Tavoa for Public Prosecutor
Mr. Juris Ozols for the Defendant
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/vu/cases/VUSC/1998/34.html
