Public Prosecutor v Massing [2005] VUSC 146; CRC 068 2005 (19 December 2005)

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

CRIMINAL CASE No. 68 of 2005

PUBLIC PROSECUTOR

-v-

1) GIDEON MASSING
2) DANIEL MASSING
3) MAHIT MASSING
4) HAPI KENNETH
5) ANDI HAPI
6) JOSEPH MASSING
7) GEORGE SEI KENNETH
8) WEL MASSING

Coram: Chief Justice Lunabek

Counsel: Mr Abel Kalmet for the Public Prosecutor
Mr Jacob Kausiama for the Defendants

SENTENCE

This is the sentence of the following Defendants: Gideon Massing, Daniel Massing, Mahit Massing, Hapi Kenneth, Andy Hapi, Joseph Massing, George Sei Kenneth and Wel Massing. All the Defendants are from Sameu Village, South East Ambrym.

The Defendant, Mahit Massing pleaded guilty that on Saturday 8 October 2005 he intentionally killed Willie Malon by sticking his sharp bush knife twice into his abdomen causing his death, contrary to Section 106(1)(b) of the Penal Code Act [CAP. 135].

The other Defendants pleaded guilty to the offence of Aiding Mahit Massing to intentionally kill Willie Malon, contrary to Sections 30 and 106(1)(b) of the Penal Code Act on the same date of 8 October 2005, causing the death of the deceased victim.

The prosecution withdrew two (2) other charges: Unlawful Assembly, contrary to Section 69 of the Penal Code Act and Inciting Commission of the offence of Intentional Homicide, contrary to Sections 35 and 106(1)(b) of the Penal Code Act. The Defendants are sentenced only for the remaining offences: Intentional Homicide and Aiding Intentional Homicide.

The brief facts are accepted by the defence and are set out in the prosecution submissions as follows:

• Before incident
  

The prosecution case concerns the death of late Willie Malon of Toak Village, South East Ambrym. On the Saturday 8^th October, 2005 following the actions of the eight Defendants which include: Gideon Massing, Daniel Massing, Mahit Massing, Hapi Kenneth, Andy Hapi, Joseph Massing, George Sei Kenneth and Wel Massing all also from South East Ambrym at Sameu Village.

Sometime in the morning of 8^th October 2005 the deceased victim and some of his family members totaling seven went to follow up on an incident that happened at one of their gardens. They proceeded to go to the Defendants’ house (Gideon Massing family) to ask them if they had anything to do with some damage at their garden but there was no one so they returned back to their own garden. They remained there until around 3.00PM as they were roasting some yam and upon returning home they passed the victim’s garden and noticed that his (victim’s) wild yams have been cut to pieces. The victim immediately instructed that they were to go and see Gideon’s family (Defendant Gideon Massing) and inquire about why they had cut the yams.

• Incident – 8^th October 2005
  

Upon arriving at the Defendants’ area they inquired about who had done the damage to the yams as there was present Gideon Massing, Daniel Massing, and the other Defendants. The Defendant Gideon Massing was holding a bow and arrow at that time, and he asked the victim to approach him to fight to which the victim refused saying again that they only wanted to know why the yams were damaged. Daniel Massing then removed Gideon’s bow and arrow and aimed it at the victim and those who were accompanying him but did not shoot. Gideon Massing then ordered the Defendants who were near or around him to go after the victim and his group. The Defendants then ran towards the victim and his group who where taking flight from the Defendants.

The Defendants gave chase after the victim and his group, and had at their possession items including stones, bow and arrows, spear made from knife tied to a piece of wood, bamboo, bush knives, sharpened bamboo, and one was not armed also gave chase. As the Defendants approached the victim, those accompanying him (victim) had taken flight, and the victim could not keep up and was left to face the approaching Defendants. Gideon Massing threw a stone at the victim hitting him to his left ribs which caused him to fall and the other Defendants caught up with him (victim). The Defendants surrounded the victim and Mahit Massing used his knife on the victim twice sticking it to his body. The victim was dying and struck Hapi Kenneth to his finger, who in return he (Hapi) used his knife to cut the victim’s finger and shoulder. After the attacks the Defendants left the victim. The victim was lying near a small creek and was lying still and his body was taken home by Abeti Frank who was with the victim that day but had run off initially and some other helpers. The Defendants had returned to Sameu Village.

• After Incident
  

The victim was medically examined later on the evening of the same day and the following was identified:

- 2 very deep wounds to abdomen;
- two thumbs amputated;
- other fingers injured;
- injuries to left elbow, shoulder and forehead;
- haematoma over his whole body.

It was found that the victim had no chance to escape death and he died before receiving medical assistance.

The Defendants volunteered their statements under caution to the police admitting their involvement with the incident of the 8^th October 2005 relating to the victim late Willie Malon. Mahit Massing admitted that before carrying out the attack on the victim he had made up his mind to kill the victim by making a prayer and asking for strength. Andy Massing admitted that before the afternoon attack on the victim, they (Defendants) had planned to kill the victim and so they had armed themselves and searched for him between 11.00AM to around 1.00PM but did not find the victim and it was upon their return home and resting that the victim and his group arrived at their area.

Defendants Mahit Massing is charged and pleaded guilty to the offence of Intentional Homicide, contrary to Section 106(1)(b) of the Penal Code Act [CAP. 135].

Section 106(1)(b) provides:

“106 (1) No person shall by any unlawful act or omission intentionally cause the death of another person.

Penalty: (a) ...

(b) if the homicide is premeditated, imprisonment for life.

(2) For the purposes of subsection (1), premeditation consists of a decision made before the act to make a homicidal attack on a particular person or any person who may be found or encountered.”

The following are the elements of this charge:

1. There was a death.
   
2. The death was caused by the Defendants;
   
3. The death was a result of an unlawful act;
   
4. The act was a premeditated act in that before carrying out the act of killing the accused had decided to make a homicidal attack on the deceased.
   

The facts show that Mahit Massing used his sharp bushed knife to strike the abdomen of Willie Malon twice resulting in his death. Mahit Massing has admitted that he has made up his mind before the attack on the victim that he was going to harm the victim in some way and has sought strength by praying.

The following remaining Defendants: Gideon massing, Daniel Massing, Hapi Kenneth, Andy Hapi, Joseph Massing, George Sei Kenneth and Wel Massing were charged of Aiding Intentional Homicide, contrary to Sections 30 and 106(1)(b) of the Penal Code Act.

Section 30 of the Act states:

“Any person who aids, counsels or procures the commission of a criminal offence shall be guilty as an accomplice and may be charged as a principle offender.”

Section 32 of the Penal Code Act says:

“Subject to any express provision of law, an accomplice and a co-offender shall be punishable in like manner as a principle or sole offender.”

The following are the elements of the offence:

1. The Defendants aided to cause ham on the body of the victim Willie Malon.
   
2. The Defendants aided by inflicting harm on the body of the victim Willie Malon.
   
3. The victim Willie Malon died as a result of the harm he sustained on his body.
   
4. The Defendants, aided to cause the death of the victim Willie Malon.
   
5. The Defendants had decided to make a homicidal attack on the victim Willie Malon.
   

All the Defendants were armed except Joseph Massing. Gideon Massing had used a stone on the victim. Hapi Kenneth had used a knife on the victim after he was motionless. Other Defendants took part in chasing the victim and his group. They surrounded the victim while Mahit Massing used his knife on the victim and later Hapi Kenneth. All Defendants were involved earlier to look for the victim and were armed at that time which was around 11.00AM to 1.00PM o’clock.

The offences committed by the Defendants are very serious offences. Intentional Homicide with premeditation carries a maximum penalty of life imprisonment.

The following cases were referred to the Court:

• Public Prosecutor v. Dick Nelsor Kalo & Remo Takae – CR 41 of 2003
• Public Prosecutor v. Numaraian Iakis & Others – CR 42 of 1994
• Public Prosecutor v. David Kalopat – CR 8 of 1987
  

The seriousness of this case warrants an immediate custodial sentence for all the Defendants.

The Courts must condemn the use of weapons by carrying of knives and dangerous objects in the circumstances as the present case. In the case of Public Prosecutor v. Maxon Toa, Criminal Appeal Case No. 4 of 2003 (pp. 4 & 6), the Court of Appeal stressed the following:

“In a society where the carrying of knives in public is not an altogether uncommon occurrence, the Courts have a duty to clearly and unequivocally signal that the introduction of knife into any sort of dispute between young men is totally unacceptable and where it leads to death (as it did in this case) the person will forfeit the right to remain in the community. A court must always have regard to the circumstances of the offender equally it needs to weight the public interest in condemning gratuitous violence, seeking to deter those who act in violent ways, and in punishing those who needlessly take like of another human being. There matters are equally to be considered.”

In sentencing each and all the Defendants I take into account of what the Defendants’ counsel says.

Mahit Massing: is 20 years old. He is a first time offender. He pleads guilty to Intentional Homicide with premeditation, contrary to Section 106(1)(b) of the Penal Code Act. I sentence Mahit Massing to 20 years imprisonment. I reduce his sentence to 18 years for his guilty plea and the time already spent in custody. I order Mahit Massing to serve a term of imprisonment of 18 years with immediate effect.

Gideon Massing

On the facts before me, Gideon Massing is the ring leader of the Defendants. He is the oldest of the Defendants who should show to other young Defendants a good example of how to resolve dispute without recourse to dangerous weapons such as a bush knife. I sentence Defendant Gideon Massing to 20 years imprisonment. I reduce the sentence to 18 years for his guilty plea and the time already spent in custody. I order Gideon Massing to serve a term of imprisonment of 18 years with immediate effect.

Hapi Kenneth is 35 years old. He pleads guilty. He has no previous convictions. On the facts before me I sentence Defendant Hapi Kenneth to 20 years imprisonment. I reduce the sentence to 18 years to take account of the guilty plea and the time already spent in custody. I order Defendant Hapi Kenneth to serve a term of 18 years imprisonment with immediate effect.

Daniel Massing is 20 years old. He pleads guilty. He has no previous convictions. I sentence him to 16 years imprisonment. I reduce the sentence to 14 years imprisonment after appropriate deductions made. I order Daniel massing to serve a term of 14 years imprisonment with immediate effect.

Andy Hapi is 20 years old. He is a first time offender. He pleaded guilty. I take into account of his young age. I sentence him to 16 years imprisonment. I reduce it to 14 years. I order Andy Hapi to serve a term of imprisonment of 14 years with immediate effect.

Joseph Massing is 18 years of age. He is a first time offender. He pleads guilty. On the facts before me, I sentence Defendant Joseph Massing to 12 years imprisonment. I take into account of his young age and guilty plea. I reduce his sentence to 10 years after appropriate deductions. I order Joseph Massing to serve 10 years imprisonment with immediate effect.

George Sei Kenneth is 25 years old. He is a first time offender. He pleads guilty. I sentence him to 20 years imprisonment. After appropriate deduction made I reduce his sentence to 18 years. I order George Sei Kenneth to serve 18 years imprisonment with immediate effect.

Wel Massing is 41 years old. He is a first time offender. He pleads guilty as charged. I sentence this Defendant to 20 years imprisonment. After proper deductions, I reduce his sentence to 18 years. I order Wel Massing to serve a term of 18 years imprisonment with immediate effect.

Each and all eight (8) Defendants must serve their respective sentences with immediate effect.

Each and all have 14 days to appeal.

DATED at Port-Vila this 19^th day of December 2005

BY THE COURT

Vincent LUNABEK
Chief Justice