Public Prosecutor v Charley [1998] VUSC 80; CRC 023 1998 (30 October 1998)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CRIMINAL JURISDICTION

CR No. 23 of 1998

PUBL>PUBLIC PROSECUTOR

-v-

GEORGE CHARLEY

Public Prosecutor for the State
Public Solicitor for the Defendant.

SENTENCE

The Defendant was charged under Section 107 (c) of the Penal Code where as the maximum penalty is five years imprisonment.

The Defendant pleaded guilty to this charge and addressed by counsels on sentence and the matter was adjourned to the 30^th for sentence. On the 30^th the prosecution failed to turn up and the Court continued to announce its sentence.

In adjourning the matter to today was for the parties to come to some settlements as compensation. The counsel for the defendant informed the Court that the prosecutor has not indicated such arrangements. In view of this, the Court shall proceed without the public prosecutor.

The defendant at that time was in a dance at L’Houstalet nightclub. The victim came in and for some reasons unknown to the defendant, assaulted the defendant first. As a result, the defendant approached the security to ask the victim as to why he assaulted him. This took place, but the victim did not explain, then and there, the defendant slapped him twice. As a result he went to the hospital and one of his eye was taken off.

The counsel submitted that very eye, was injured already prior to the defendant slapping the victim. This information was from the defendant himself who lived closer to the victim and knew of that. There were no explanation from the prosecutor as to this allege information and in absence of such explanation, the court believes the defendant.

I have stated earlier in one of my case, PP -v- Rosen Kaltapas, that provocation is not a complete defence to an offence where assault is an element, but amount to diminish criminal responsibilities. I am satisfied that the defendant was provoked otherwise this could not have had happened.

In sentencing, I am of the view that a custodial sentence is not an appropriate penalty to impose on the defendant, but I find that a penalty of a fine will be the most appropriate penalty.

For these reasons, the defendant is now convicted and ordered to pay a court fine of 20,000 to be paid within 6hin 60 days as alternative penalty; in default of payment be imprisoned for a period of one week for every one thousand vatu not paid. No order for compensation.

DATED AT PORT VILA this 30^th October 1998.

R. MARUM MBE
JUDGE

Ms Kayleen TAVOA for the Public Prosecutor
Mr. Reynold LIU for the Public Solicitor