Public Prosecutor v Thompson [2005] VUSC 86; CRC 029 2005 (1 July 2005)

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

Criminal Case No. 29 of 2005

PUBLIC PROSECUTOR

–v-

SANDY THOMPSON

Coram: Justice P I Treston

Mr. Kalmet for Public Prosecutor
Mr. Tavoa for Accused

Date of Sentence: 01 July 2005

SENTENCE

Mr Sandy Thompson you appear today for sentence on a charge of Intentional Assault Causing Death under Section 107(d) of the Penal Code [CAP 135]. The maximum potential penalty is imprisonment for 10 years.

You have pleaded guilty and I will mention that shortly. The details of the charges were that you are from Tongoa and you live at Vilakara, South Epi. The charge indicates that you meant to assault the victim and in fact caused his death when you cut him on the head with a knife. As a result of the incident, he died of the injury which you caused him.

It happened on Friday 8 April of this year when sometime around midnight you heard a noise and you thought that it was black magic and walked towards the window of your house. You saw the victim who was trying to open the window and once the victim realized he had been seen he ran back to his house. You called your two sons and the three of you went back to his house. You had a torch with you. On arrival you saw that the victim was holding a knife, so you took a knife from his yard and cut his door. That caused him to step outside and you fought together each of you armed with a knife. During the fight he was injured in the way that I shall describe shortly. You didn't notice the injuries at first but once you saw that there were injuries you left the victim. Your sons were there but did not take part in the fight although one of the two tried to prevent you from being injured. He saw some blood on your knife and you confirmed that you had cut the victim with it. The victim died at 9.30 p.m. the next day 9 April. His injuries included a cut to the left side of the skull which was actually broken. He had a cut on the middle of his backbone. He had swelling on his neck. The medical report indicates that death was caused by brain injury no doubt from the injury to the side of the head and the fractured skull.

The Public Prosecutor today submits to me that on the basis of similar authorities any sentence should have a deterrent effect on you and that because of the death which occurred there should be an immediate term of imprisonment. Because of the use of the knife the prosecutor says the starting point should be 8 to 10 years imprisonment. The appropriate deduction of your plea for guilty should be made but to mark the gravity of the offence and as deterrence to others in the community and punishment for you imprisonment should be imposed. It is considered that there should be a further deduction for the time you have spent in custody.

Your lawyer submitted a number of mitigating factors. You are 47 years old with 6 children. You and your wife are gardeners and earn your living through selling kava and copra, as well as operating a small store in your village. Five of your children are attending school and you must pay for their school fees. You cooperated with the Police and expressed remorse it is said through your plea. You are a first offender with previous good character and leadership roles in your community, both as a pastor and as president of the Youth in your Church, and as vice chairman of the Parents and Teachers Association and you are assistant to the Chief who has provided a report to me. It was submitted that you are not an aggressive person but a kind person who loans your possessions such as a chain saw to others for their use on public buildings etc. You yourself have and your family has undertaken and performed custom ceremonies both at Epi and Tongoa. It is submitted that the starting point in your case should be 5 to 7 years imprisonment with reduction for mitigating features such as your plea of guilty, your previous good character, the custom settlement and the time that you have spent in custody.

In sentencing the Court must hold you accountable for the harm done to the victim and the community. When I say that I do not overlook the report from chief Supwo. Clearly the victim had been causing trouble to you and others in the village for quite some time. The trouble had included criminal behaviour which was dealt with by the Chief largely with fines but the victim failed to satisfy the fines levied against him.

On the other hand, the Chief reported favourably about you and I have already mentioned some facts about that. The Chief even offered to give a piece of land to the family of the deceased. Nevertheless, as the Prosecutor has submitted, you must be held responsible for your actions. You must be punished and I must denounce your conduct and deter you and others from similar offending. I must of course protect the community.

Sentencing generally involves considering the balance of mitigating and aggravating factors.

The aggravating features include of course the use of a weapon by you but that is lessened considerably by the fact that the deceased was also armed with a knife, and it seems that it was he who was endeavouring to unlawfully enter your property. There was no premeditation on your part because you were simply acting in response to the deceased's own act. Another aggravating feature of course is that your actions caused the death of the victim. You also took it upon yourself to follow him home and then to take a weapon and assault him very violently in the course of the fight as was shown by his injuries.

On the mitigating side of things of course I take into account you plea of guilty. I have already mentioned the conduct of the victim but it was your response that lead to the ultimate fight and confrontation. I take into account your expressions of remorse and contrition through your plea of guilty. I take into account the quite significant efforts that you and your family have made on two islands to satisfy the provisions of section 119 of the Criminal Procedure Code [CAP 136] in relation to compensation by custom. I also take into account the general circumstances giving rise to the confrontation and your previous good character and standing in the community.

As was said in the case of Public Prosecutor v Niala 2004 VUCA 25 Criminal Appeal Case 06 of 2004, sentencing is not purely a mathematical exercise but nevertheless, certain allowances must be made. With the greatest respect, I do not agree with the starting point put forward by the Prosecution in this case. That seems to me to be too high a starting point bearing in mind the conduct of the victim and the fact that each of you was armed with a knife. In fact it was the victim who, it seems from the facts, was the first one with the weapon and you simply looked around to obtain a similar weapon to place yourself on equal terms with him. However, your actions in relation to him were significant indeed as is demonstrated by the injuries and it seems that you were uninjured and unscathed as a result of the confrontation.

In my view, the appropriate starting point for this assault, which in fact resulted in the death of the victim, is six years imprisonment. From that I deduct an allowance for your plea of guilty and for the compensation and reparation made by you under custom and for the time that you spent in custody from 9 April 2005 until today 1 July 2005. Taking into account all those reductions and giving you credit for the mitigating factors, I arrive at a sentence today of three years imprisonment.

In arriving at that conclusion I am not unmindful of a number of factors, first, your worthwhile position and contribution to the community generally, and second your responsibilities not only to your wife and family but also to the victim's wife and family because he was your brother-in-law, but I am forced to the conclusion, Mr. Thompson, that society can not condone an assault like this which caused serious injuries and led to death. Despite the good things in your life, I must send you to jail for those three years as a matter of general principle. As I say, you are sentenced to three years imprisonment and you have fourteen days to appeal that sentence.

Dated AT PORT VILA, this 01^st day of July 2005

BY THE COURT

P. I. TRESTON
Judge