Public Prosecutor v Kalip [1998] VUSC 64; CRC 054 1997 (6 October 1998)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CRIMINAL JURISDICTION

CR No. 54 of 1997

PUBL>PUBLIC PROSECUTOR

- v -

LISSY KALIP

Public Prosecutor for the State
Public Solicitor for the Defendant

SENTENCE

The defendant was charged under s 106(1)(a) of the Penal Code which the offence carries a maximum ty of 20 years imprisonment.

In finding the defendant guilty as charged the coue court will consider to impose what is an appropriate sentence. Sentencing is not just finding some figures between the lowest and the highest but this will depend very much, as in this case, on all factors of the case, the defendant and the general protection of society at large. In this case there are two main factors which can be asked in sentencing the defendant:

1. Are the factors are such that the interests of the public as well as those individual can best be served by a rehabilitative sentence; or

2. Are they such that the public interest can only be served by the deterrent or retributive sentence or one which ensures the protection of the society.

The offence is an act of violence against a person. And in that case a person's life, Ruth, has gone and taken away from this world and apparently from her family and relatives, and this cannot be compensated or return to her family and relative, as in contrast the defendant is still alive and can live as long she lives.

Obviously Lissy has stayed together with James Mael, but not married but were living in a de-facto relationship. Now did it really warrant the accused to attack Ruth and James with that knife and to cause them bodily injuries. The answer is simple, it did not warrant such approach at all to be taken by the defendant. What I stated in my decision was that the defendant took the law into her own hands to justify herself resulting to the death of Ruth. I stated also that the knife that she took with her was sharp like a razor blade and cut like a scissors. She has chosen the sharpest knife. It appeared that there were no turning point for her to recourse to know that what she was to embark on was very very dangerous and I can only say she did not even care at all in causing injuries to both James and Ruth.

We all know that life is so precious, and when you lose it, you lose it for good and that is the most important factor of life that cannot be compensated in any manner neither in monetary terms.

In this case the defendant chased Ruth with the knife knowing very well that she will cause her grievous bodily injuries. She did not care at all, even when James grabbed her she did not made any attempt to let go the knife she was holding.

She never thought of causing bodily injuries to James and Ruth at that time only but has thought of it that morning at about 3 o'clock on the 23^rd of September 1997 when she got the knife with her to go to Ruth's house to look for them till the time she meet James and Ruth. At least there were ample time for her to realise that what she was going to do could cause grievous bodily harm and even death and she should have acted accordingly in avoiding this. However there appears that there was nothing to stop her in executing such unlawful act.

This type of offence requires some protection of the general society in preventing and controlling violent attack as such and the penalty of 20 years as the maximum also reflects the seriousness of such offence, so that life, such as Ruth’s life, cannot be unnecessarily taken off.

The court has a role to play in the community in protecting the community at large from violent attack against the person. Secondly it will also be taken as a form of deterrence to other who may be in same situation as Lissy. The court must impose heavy penalty otherwise if not then this can be seen as an encouragement to others who may take the similar course in taking the law into their own hands in justifying themselves in this manner.

It was submitted, by consent of both the Prosecutor and the Defence counsel, that there were some customary settlement between the parties which amount to 83,960 Vatu. Under s. 119 of the CPC allows the court to take into consideration any compensatory payment made. However, I must stress that this should not be a complete determining factor and in this case it should not be treated as payment for Ruth's death as for example for repaying somebody’s pig or other animal which was killed or damage of property of another person. We are talking about the only life that a human being has.

It is not easy to impose what is an appropriate level of sentence as the parliament only set the maximum sentence in law and for the court to impose the level not exceeding the maximum. For these reasons the appropriate penalty to impose on the defendant is five year's imprisonment. You were taken into custody on the 23^rd of September 1997 till today a total of 12 months two weeks. This period in custody will be deducted from your sentence which you will serve a period of three years eleven months and two weeks. As to the customary settlement I will deduct twelve months from such sentence of three years eleven months and two weeks with the remaining total period of sentence of two years eleven months and two weeks to serve in jail.

You are a first offender, even you pleaded not guilty you did not deny what you did and you explain it so and I can only say that you being a responsible citizen to do so and I take to deduct five months from your total sentence of which you shall now serve two years six months and two weeks as the sentence to be served by you.

I consider that it is not easy to go to jail for 2 years six months and two weeks. It is painful, but in contrast you have taken away completely Ruth's life from this earth and it is only appropriate for the court to punish you for that and at the same time this should give a sounding bell to others who may resort to take similar approaches in justifying themselves in resorting to unlawful acts or correctly to say that who may want to take the law into their hands.

thup>th day of October 1998

R. MARUM. MBE
JUDGE