Public Prosecutor v Pakoa [2002] VUSC 1; Criminal Case No 023 of 2001 (11 January 2002)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Criminal Jurisdiction)

Criminal Case No.23 of 2001

PUBLIC PROSECUTOR

–v-

JOHN AMOS PAKOA

Coram: R. Marum J. MBE

Ms. Miranda for the Prosecution

Mr. Hilary Toa for the Accused

SENTENCE

The defendant pleaded not guilty to the five counts on the 19^th September 2001. And the matter was adjourned to the 17^th October 2001 for trial. On the trial date the public prosecutor applied to amend Count 1 and 2, for Intentional Homicide or wilful murder under Section 106 (b) to a lesser offence of unintentional homicide under Section 106 (a), which carries a maximum sentence of 20 years. Also applied to amend count 3 from Section 28 and Section 106 (b) to Section 28 and Section 106 (a). The prosecutor withdrew Count 4 and 5 on application. The defendant pleaded guilty to all three counts.

In summary the prisoner was married to Mrs. Helly Pakoa (deceased). They had three children; Freda Pakoa, George Pakoa (deceased) and Annabelle Pakoa and all lived at Independence Park, Port Vila.

On the 27^th July 2001, during independence celebration, the prisoner and his whole family went to the stalls at the Independence Park. After they all went back home. Later that night, the prisoner and Mrs. Helly Pakoa returned to Independence Park and drank kava and later went back to their house just before daybreak. Soon after going back home the prisoner then stabbed Mrs. Helly Pakoa on her back with a knife, she fell to the floor and was bleeding and died resulting from bleeding from the stabbed.

After stabbing Mrs. Helly Pakoa he then went to Annabelle’s bed, hold her on her head, and cut her throat with the knife. After stabbing Annabelle he then called George to come into the house. George went into the house, he then stabbed him with a knife by cutting his throat and died later that day. The prisoner flees from their house and went to a garden in the Le Meridien area. There he cut off part of his penis and also slashed his throat however, he remain alive till today.

On the defendant statement, he was bothered very much by the deceased fashion over theft and misuse of money; using his name for false purposes; adultery; and restraining orders. However, what bothers him more was the adultery action of the deceased. In his statement, the main reason why he decided to kill them all, that is the family, is that he did not want the children to remain alive and to suffer upon the problems of their mother. The reason is against the law.

In mitigation Doctor Robert Frank, a general practitioner was called to give evidence, in my view to give evidence on the state of mind of the accused. Even though not a specialized psychiatric doctor, he treats also psychiatric patient, and about 1% of his patient are psychiatric. This is very low. There were three reports that the doctor did with findings. I accept the first report dated 8^th August 2001 where the doctor found no evidence of psychosis or severe mental disorders. This was enough to satisfy me that the prisoner was sound knowledge of what he did on that day pursuant to Section 20 (1) of the Penal Code which states: -

“Every person accused of criminal offence shall be presume sane until the contrary is proved; the burden of such prove shall be upon the accused on the balance of probabilities.”

The law is much interested in state of mind of the prisoner prior and before committing the offence and not after, for the provision of Section 20 to come into play. No evidence or history of mental disorder of the prisoner. The pleading of guilty to the lesser offence than that he was charge for, also removes the s.20 requirement.

His sign statement is self-explanatory explaining his reason to kill them all. And executed it on that day.

The offence under Section 106 (a) carries a maximum penalty of 20 yeas. This is not a minimum penalty that the Court will always impose, but reserve for subsequent offenders. The defendant is only a first offender, however, executed two deaths at once and quite serious, including attempted homicide.

Domestic violence involves two parties. And in this case mainly between married couples as the most. Mrs. Pakoa is dead and her side of stories cannot be told while the prisoner statement was that she was the cause of him taking this cause. Again the law does not accept such excuse, rather protect both parties, for them to settle the matter. That’s why the chiefs and churches leaders relatives and other responsible leaders must take active role if and when they are aware of problems being put to them, to see that it is settled one way or the other before patient runs out from one party or both parties and result to violence. On the other hand, it’s the married couple to live an honest way of married life. The statement by the prisoner is that he already paid bride price and the deceased was his wife and he is her husband and nobody else. On such statements custom, churches and the law all recognize custom marriages. However, the law does not allow the prisoner to cause injuries to her or to take away her life.

This was a tragic event calculated from a very greedy and jealous person. In jealously guarding his wife, went beyond the limit by killing her. He had no sense of respect to life of a human being. The most tragic killing is when he killed George and attempted to kill Annabelle not parties to their marital differences. For the prisoner, as head of the family unit, guardian, and providing security to the family, the wife and children looked to him for protection. To abuse it, sends message of fear, mainly within the children minds of the tragic event of the 28^th July 2001.

This is a serious case, as the general publics too have raise concern about the prisoner’s attitude. There were public outcries over the manner of killing. The Court is the peoples’ Court and the Court must also take heed of the general public concern. The type of sentence must also be seen of restoring some confidence in the family unity and the general public at large in Vanuatu. In sentencing you I have taken into consideration the period spent in custody and the doctors report. In your case there are no other form of suitable penalty that I can impose to match the crime you committed, but to impose a severe custodial sentence as a punishment. Furthermore, the sentence that I will impose will be in no way near compensating the death of Helly and George. The only way to compensate them is to give them back their life, which is quite impossible. I therefore impose the following sentences:-

Count 1 - You are convicted and sentenced to seven years six months imprisonment.

Count 2 - You are convicted and sentenced to seven years six months imprisonment.

For Count 1 and 2 you shall serve your sentence cumulatively, which you will serve Count 1 first and when you finish you will then start serving Count 2.

That is you will serve a total of fifteen years imprisonment altogether.

Count 3 - You are convicted and sentenced to four years imprisonment to be served concurrently.

That is you are to serve the four years together with the above sentence of fifteen years.

You have a right to appeal the sentences imposed.

Dated at Port Vila, this 11^th day of January 2002.

R. MARUM MBE

JUDGE.