IN THE SUPREME COURT
OF
THE REPUBLIC OF VANUATU
CRIMINAL JURISDICTION
CR No. 09 of 1998
PUBLIC PROSECUTOR
-v-
JOE NAVIS
Mr Daniel Willie Public Prosecutor for the State
Mr Stephen Joel for the Defendant.
SENTENCE
The Defendant was charged under section 107(d) of the Penal Code
for that on the 8th March 1998 assaulted Iawilum a female person and caused her
serious injuries causing her death.
The penalty under s.107(d) is 10 years imprisonment as the maximum.
When the law sets a penalty it sets the maximum, as in this
case, the maximum penalty is
10 years. This does not mean that a first offender is liable to the maximum penalty of 10
years, as 10 years is not a minimum penalty. I make this explanation so that the public
must know that every time an offender
is convicted under section 107(d) dos not mean that
he or she will be sentenced to 10 years straight away. However, the Court
can impose a
maximum penalty, which is quite rare on first offenders, but if it does then it has to be
for a good cause
with detail explanation. On this basis the role of the Court is only to
impose a level of penalty as an appropriate punishment
between the lowest and the maximum.
The level of penalty can be affected in many ways i.e. prior conviction, as in this case
seriousness of the assault further causing death and other factors considered by the
Court. In arriving as to what is an
appropriate penalty the Court must know the fullest
fact of the case to arrive at the level of penalty that is appropriate.
I must also stress
here that it is not the Court that sets the maximum penalty, it is the Parliament through
the Legislative
Power.
In this case the Defendant being the husband and the deceased the wife.
The situation arose out of a pure domestic argument over
the refusal by the deceased to
attend a gathering. That gathering was arranged by the relatives of the Defendant to eat
together with the Defendant before he goes back to Tanna. This was arranged for Saturday.
The deceased was not happy with such
gathering, as he feared that he may run away to
Tanna. The deceased then got a piece of wood and attacked the Defendant with
and assaulted
him on his shoulder. The deceased retaliated and I accept from the Defendant’s
statement he retaliated
by assaulting her four times on her stomach area and slapped her
once and she fell down. She was brought to the hospital and
was pronounced dead by Dr.
Wen-Yong. The doctor’s finding concluded that she died of hypo-volamic cardiac arrest
secondary
to a rupture spleen. And this was consistent with blunt injury to the abdomen.
If this is the finding of the Doctor as I accept then this was
consistent to the four punches by the Defendant to the abdomen
area of the deceased.
The offence under 107(d) of the Penal Code expressly states that
intentional assault causing damage resulting to death is a breach of section 107(d) and
this was
in this Defendant’s case. I am aware that the deceased attacked first the
Defendant that was over a domestic argument.
And then the Defendant counter attacked her
and took off the piece of wood that she attacked him with as at the time that he
was
angry. It is obvious that the Defendant had no intention to cause the death of the
deceased. Nevertheless, for the
Defendant to punch the deceased on the abdomen area four
times was quite very excessive. I said this because the abdomen area
is a very soft area
of the body and to punch that area four times by the Defendant was very dangerous.
Further, to rupture
that area as stated by the Doctor, which caused her death, shows that
the punches were very severe.
This is a classical case where both the wife [deceased] and the husband
[defendant] must be jointly blamed for what had caused
the deceased’s death. I have
state earlier in my other sentence in the Public Prosecutor –v- Peter Thomas
that attacker in administering assault on another person must think a little bit better
and wiser in delivering the assault
on another person as to avoid death. In this case if
the Defendant had played the wisemen attitude then he should have turned
away from her
after removing the piece of wood or even run away but he choose not to.
I have also stated in my previous sentences that compensation will not
pay for a dead person to come back to life. The court
also considered other mitigating
factors as submitted in arriving to what will be an appropriate penalty.
In coming to these reasons the Court is of the view that the
appropriate penalty to impose on the Defendant is to sentence him
to jail to serve two
basic purposes-
(1) to punish him for the excessive assault and causing death, and
(2) to deter other, mainly husbands and wives or those living in
de facto relationship and to the general community in committing
such offence.
For this reason I will impose a sentence of two years as the
appropriate penalty.
In this case the Defendant would not have been sentenced to jail by
this Court if the deceased had not started the fight, but
rather should have done the
right thing by reconciling with the defendant rather than resorting to violence which was
not
called for at time. Worse of all he loses his love one and only best partner he has.
DATED AT PORT-VILA, this 7th APRIL 1999
BY THE COURT
REGGETT MARUM MBE
JUDGE
