Public Prosecutor v Bakokoto [1998] VUSC 5; CRC 058 1997 (20 March 1998)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CRIMINAL JURISDICTION

CR No. 58 of 1997

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PER">PUBLIC PROSECUTOR

-v-

WARAO IVONG BAKOKOTO

Public Prosecutor for the State
Susan Bothmann Barlow & Associates for the Accused

SER">SENTENCE

The accused appeared for sentence today.

For the Court to determine what is an appropriate penalty the court must have the fullest inforinformation before it regarding both the offence and the offender.

The accused comes from Ifira Island. On the early hours of the 2nd November 1997, between the hour of 3.00 am and 5.00 am, behind the Flamingo, the Accused with two others with the intention assaulted Semis Kalangis and caused him serious injuries and thereby caused his death.

It is for the Court to analyzed the fact to assist the Court in arriving as to an appropriate penalty.

That night, Emma came to the Flamingo to dance. At Le Flamingo the deceased for some other reasons assaulted Emma and she received injuries to her nose. She cried and went towards Phoenix. She then saw the accused and another person and a girl. The accused was Emma’s boyfriend. The accused person then inquired why she cried and she informed him that the deceased person assaulted her. They then proceed to Flamingo. At Flamingo the accused person pulled the deceased out and questioned him why he assaulted Emma. She saw the deceased assaulted the accused first, she was frightened and walked away. At that time there were two other women present, Lucien Weekes and Vini Anna Poilapa.

Lucien and Vini Anna were standing at the side of Westpac Bank, which was just close to the back of Flamingo’s door.

Lucien saw about four man came out of Flamingo. They followed another man who came out first. After a small statement spoken, she saw one from the four men assaulted that man. She was just about 5 metres away and saw what happened. That man tried to avoid the punches and tried to fight back. Then one of the four kicked the other man and he fell down. One of the four man was trying to stop the other three men but because they could not listen he went back into Flamingo. The other man who tried to stop the fight was Berry Tulagis as I accepted from his statement.

The other three men continued to assault and continued to kick him. That man fell down with his head to the cement used for partition towards the sea front. When that man fell down the other two left and also went inside Flamingo. Lucien and Anna tried to open the back door to get help from the security but the door could not open.

That person was still left lying on the ground and the other person out of the four who remain there continued to kick that person who was lying on the ground on his head and also other parts of his body.

Vini Anna Poilapa also witnessed what happened as she was with Lucien at that time. She at that time saw a person came out and said good night to them and went on. Not long after four other person followed him. She thought that they were his friends. Not long they started to assault that other person. They also kicked him and that other person fell down and tried to run away but they continued to kick him. When they kicked his head he fell down and he could no longer get up.

Emma, the accused person's girlfriend when she saw them fighting she then left and walked towards Phoenix and stayed there for about five minutes and then came back to the scene of the fight. When she came back to the scene of the fight she saw that the accused was standing close to the person who was lying on the ground at the back door of Flamingo. She then called to him for them to go. They stood near Calvo and a Taxi came and the person in the taxi questioned the accused and then the accused ran away.

Jeffery Nomri, in his statement stated that the accused person was chased and he ran and fell down close to him and he then took the accused to the police Station. John Alick also gave the similar explanation. However, when John Alick flashed his torch on the accused he saw blood on his shoes, it was a white Adidas shoe.

By that time the Police were also informed of the assault of a person at Flamingo and then Grey Vuke, Willy Amkori , Samuel Jeffrey and Joseph Noah all went to the scene of Flamingo. Grey Vuke on arrival he could see from the brightness of the light the person’s face that was lying on the ground. His face was full with blood, and that person was still alive. He then took him to the hospital.

Doctor Liu Yen Yong in a medical report reported receiving a body of Semis Kaloran and reported that he was assaulted. He was brought to the hospital in the early hours of the morning of the 2.11.97. She reported that Semis Kaloran both lower jaws were fractured. Semis Kaloran was kept for observation for about two hours and suddenly his heart stops beating and he died. Doctor concluded that Semis Kaloran died of head injuries and drunkenness. Kalmet Kaltabang in his statement stated that the deceased was his adopted brother and he was adopted from Merelyn Kalangis from Erakor. He used to live with them on Ifira Island and sometime he goes to Erakor.

Law.

The Accused person was previously charged for the offence under section 106(1)(b), which carries a maximum penalty for life.

On the 11.3.98 when the matter came before me the Public Prosecutor amended the charge from section 106(1) (b) to section 107 (d). The offence under section 107 (d) carries a maximum penalty of 10 years. I have stated earlier in one of my decision in PP -v- Nasao Moses and Others that under Article 55 of the Constitution the Public Prosecutor is not subject to the direction or control of any other person or body in the exercise of its functions.

Therefore one of his functions is to amend one charge to another depending on the strength of his case. Neither me as a Judge can interfere with that function.

The Penal Code is an Act of parliament, which means that the Penal Code was enacted by Parliament. Therefore, under section 107(d) it is the parliament that determines the limit of sentence, that is ten years maximum and not the Court. The Judiciary that is Judges and Magistrates and I as the Presiding Judge in this case is to determine the level of sentence.

In the exercise of my power in determining an appropriate sentence on the accused person for this offence then such sentence must be just: to be so, I must apply proper principle in sentencing and those principles must be exercised judicially and largely to be accepted by the very society of that jurisdiction and must give due considerations to all factors relating to the offence and the offender. The type of sentences can be either:

1. deterrence sentence
2. preventive sentence
3. retributory sentence
4. rehabilitation sentence

Considerations.

The accused person and the other two attacked the deceased. The forth person was only there trying to stop the fight. The assault was over Emma, that is the deceased previously or just before he was attacked, assaulted Emma. The deceased was punched and kicked by the accused and the other two person when the deceased fell to the ground the other two left and went back to Flamingo. The accused was left with the decease. As witnessed by Lucien and Vini Anna after the other two went back inside the accused continued to kick the deceased while he was already lying on the ground. Felix Tarao in his statement also witnessed the fight from a distance. He saw what happened and he ran to the place where the deceased was attacked and when he came to that place he saw the accused assaulted the deceased with his hand and was also kicking him with his shoes. John Alick, in his statement, after following the accused, he asked the accused over the fight but he denied assaulting the deceased and when he touched the accused shoes, a white Adidas, he could see blood on his shoes. So when John questioned the accused further the accused then ran and jumped into the sea.

The doctor reported in her medical report that the deceased died from fractures of both lower jaws and concluded that the deceased died from head injuries and drunkenness. The doctor’s report is consistent with the manner of attack by the accused and two others. It indicated to me that the deceased was severally attacked.

The accused counsel submitted that it was a tragic event or I gathered as a sad or shocking or unhappy ending. The fight was between two drunken person who were under the influence of liquor. They fought over a girl and the deceased assaulted the accused first.

No evidence to show that the accused was drunk, the only evidence was the doctor’s report that the deceased died also of drunkenness. Further, being drunk is not a mitigating circumstances for consideration.

Emma in her statement, stated that the deceased assaulted the accused first, however Lucien and Vini Anna saw that one of the four assaulted the deceased first and they continued to witness the fight while Emma was frightened and walked towards Phoenix and came back after five minutes later. I accept their statement that the accused and two others assaulted the deceased first.

The situation is that the three of them attacked the deceased, assaulted him and even kicked him on his head and body and fell down to the ground. When the other two left the accused continued to kick the deceased on his head. Evidence shows that he was wearing a white Adidas shoe which had bloodstains on it. This means that the shoe worn by the accused, he used it as a weapon to inflict injuries to the deceased by kicking him on the body and the head, which in itself is of a serious nature.

The deceased was attacked by three men. He was drunk and helpless and could not stand the force of the three men attacking at once. He was helpless to defend or protect himself, even when the deceased was lying helplessly on the ground he was continually kicked by the accused. They had no pity whatsoever on the deceased, if they had then at least they could have come to his assistance by helping him. They just left him there for him to help himself.

The accused has a prior conviction of intentional assault in 1994 which he was convicted and fined 10,000 vatu and 5,000 vatu prosecution cost. The counsels submitted that the matter has been dealt with as a minor offence and the circumstances are different to this offence.

The offence the accused is found guilty of, intentional assault, is an element and as such the Court accept the prior conviction for consideration but with the view that the accused was already punished for it.

The deceased was adopted by Kalmet Kaltabang from her real mother Merelyn Kalangis from Erakor. Now the relatives have lost one of their loved one.

In determining sentence I asked myself whether to punish the accused or will justice be served by a disposition which seeks to rehabilitate the offender.

The action of the accused and the two other constitute a very serious assault against Semis Kalangis and caused his death. The death was the direct result of the assault of the accused and the two others. Therefore, in the exercise of my power, after due considerations as to the offence, as to how it was committed, and the offender, the accused must be punished for his wrong doings by custodial sentence. The custodial sentence will serve two purposes:

1. is to punish the accused and deter him from committing similar offences; and

2. to deter others.

Before the Court arrive as to what is an appropriate custodial sentence the Court has to consider mitigating factors.

The prisoner pleaded guilty to this charge as a responsible citizen. In his allocatus he decided not to say anything, however his counsel on instructions from the accused, he was deeply, deeply sorry for what has happened. The accused and the deceased knew each other and they grow up together. Kalmet Kaltabang, the deceased adopted brother confirmed that they are staying together on Ifira Island. The accused is 21 years old, not married, both parents are still alive and he is self employed. Two letters, one from Pastor Nipu and the other from Chief Kalsakau were also taken into considerations.

Before proceeding to sentence the accused, I must highlight again that the offence the accused committed carries a maximum penalty of ten years imprisonment. The Court is to impose a level of sentence as the appropriate penalty.

Therefore, I will impose a custodial sentence of four years and the period in custody will be deducted.

COURT ORDER.

The accused is now convicted and sentenced to four years in prison. Four months and three weeks will be deducted for period in custody.

DATED AT PORT VILA this 20th day of March 1998

BY ORDER OF THE COURT

Regget MARUM J.
Judge

Public Prosecutor – Mr Willie Daniel.
Susan Barlow for the accused.