Public Prosecutor v William [2004] VUSC 87; Criminal Case 005 of 2004 (19 March 2004)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

Criminal Case No. 05 of 2004

PUBLIC PROSECUTOR

–v-

KORA WILLIAM

Coram: Justice Treston

Ms. Wodak for Public Prosecutor
Mr. Bartels for Defendant

SENTENCE

You appear for sentence today on 1 count of intentional assault causing permanent damage to the victim, your wife. The maximum penalty provided for by the Penal Code for that offence is 5 years imprisonment.

You are 69 years old the victim, your wife, it seems is 68 and you have been married for nearly 50 years. The pair of you have had 11 children, 9 of whom remain living. This happened on 3 January of this year when you ambushed the victim and attacked her with a bush knife. Her friends tried to protect her but you sliced her leg rendering her immobile and while she was in this state you continued to attack her with the bush knife, cutting at her left leg, left arm and her head. She suffered deep lacerations to her scalp and a 14-cm long laceration to her left leg involving muscle damage. Her proximal radius on the left-hand side was also fractured. She was lucky not to die.

The prosecution submits that there are serious aggravating factors, which I must take into account. They include your previous conviction against the same victim when you used a piece of wood and a stone. For that, you were sentenced in August 1999 to 2 months imprisonment which was suspended for 2 years. The prosecution also points to previous violent behaviour in your relationship including that previous conviction and it is submitted that that behaviour amounts to a repeated pattern. The prosecution point to the serious nature of this attack as well as the use of a lethal weapon namely a bush knife and finally it is submitted that your intention to cause serious harm to the victim is clear from the use of the weapon and the nature of the injuries. Authorities are provided to me which are of assistance and it is submitted by the Public Prosecutor that the sentencing range should be somewhere between 3 and 4 years.

On your behalf, I am reminded of your age of 69 years and your health difficulties as referred to in a letter from Central Hospital concerning your eyesight. While it is acknowledge by your counsel that this is a serious offence, I am asked to take into account your long marriage to the victim, and the fact that any sentence of imprisonment will be significant because of the fact that you are effectively banished from your home island as a result of this offending because your family has disowned you and your wife has indicated that she doesn't want to resume living with you. I am asked to be merciful and consider your rehabilitation as much as the retribution which the public and law require. I am asked to remember that you are willing and have been willing to undergo counselling which could not take place before now because of conflict issues with those who a willing to do it. I am asked to take into account your plea of guilty and the time you have spent in custody.

When I approach the question of sentencing I must look at the maximum sentence of five years imprisonment. I must hold you accountable for the harm done to the victim not only physically but also psychologically. Effectively it is not only the victim you have wronged but also the community and your particular community on Epi at large. I must hold you responsible for your actions and I must consider the victim's interests. I could take into account, were it appropriate, any custom settlement under section 119 of the Criminal Procedure Code [CAP 136], but there is no suggestion that anything has been done in that regard. I must not only denounce your conduct but also deter you and other like-minded offenders from similar activities. I must protect the victim and the community at large from this sort of violent behaviour and I recall and reinforce the comments made by the then Chief Justice in Public Prosecutor v Willie Tataki C.C. 1994 where the Chief Justice said that the violence towards women would not be accepted in this community and wives would be protected from excesses from their husbands. I am of the view that your offending and the nature of the injuries and the weapon used place your case towards the top end of the gravity of offending for this offence accepting that the least restrictive outcome must be the one which is followed. There have been significant physical effects on the victim.

Aggravating features must be balanced against the mitigating ones and the aggravating ones include the following, first there was actual violence used, second, there was the use of a lethal weapon which could and did inflict serious injuries, third, there was the harm caused to the victim, fourth, there was the stated excess of authority which you used over her, when you consider that you had some right over her because you had purchased her, in your words, fifth, there was the premeditation of this offending when you actually ambushed her behind from the banana tree and finally there was your previous conviction and your previous pattern of abusive behaviour.

By way of mitigation there is of course your age of 69 years, your plea of guilty, your cooperation with the authorities and your expression of contrition and regret but the aggravating features far outweigh the mitigating ones in your case.

The Court must respond firmly to offences of this kind. The Court must protect women and deter others from behaving in a like way. This was a cowardly and unprovoked assault without justification and the personal consequences which you will now face and which have been outlined to me are really of your own making. As I have said, I am of the view that this offending must be marked in a way which is nearer to the maximum than the minimum. Imprisonment is inevitable and you must use the time that you are in custody to reflect upon the harm and destruction you have heaped upon your own family. At 69 years of age or not, the repetitive use of weapons on someone who deserves your respect, love and affection is intolerable. I agree with the prosecutor that there are more aggravating features in this case than in the ones presented to the Court. You must of course be given appropriate credit for your plea of guilty which has avoided the necessity of a defended trial but it is my view that the result of such a trial would have led to this same result inevitably.

Giving you such credit as I can, I consider the appropriate sentence is 3 years 6 and 1/2 months imprisonment. I give you credit for the four months, you have already spent in custody. The result of sentencing today is a sentence of 3 years 2 and 1/2 months imprisonment. I understand your health difficulties and the necessity of an operation and it is my view that the appropriate authorities ought to release you for that operation and for any consequence rehabilitation, but once those matters are complete it is imperative that you are returned to the prison to serve the balance of your sentence. You have 14 days to appeal that sentence should you be dissatisfied with it.

Dated AT PORT VILA, this 19^th day of May 2004

BY THE COURT

P. I. TRESTON
Judge