Public Prosecutor v Charlie [2006] VUSC 9; CRC 070 2005 (31 January 2006)

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

Criminal Case No. 70 of 2005

PUBLIC PROSECUTOR

–v-

PIERRE CHARLIE

Coram: Justice Treston

Mr. Obed for Public Prosecutor
Mr. Bartels for Defendant

SENTENCE

Mr. Pierre Charlie, you appear for sentence today having pleaded guilty last year to a charge of intentional assault causing death. The incident occurred on 22 October 2005, near Moso landing at North Efate and the maximum penalty in relation to that count is 10 years imprisonment.

What happened was a combination of events which led to an unfortunate conclusion on your part which appears to have been an erroneous one. There had been a wedding ceremony and your then de-facto wife had gone to the wedding and when the festivities came to an end, she decided to return home and asked the deceased Joel Bani to accompany her back home. She had had significant alcohol it seems as a result of which on the way back she felt dizzy and fell down. The deceased laid her on the side of the road to sleep and left her alone to walk home but changed his mind and went back and he himself went to sleep nearby but it seems that nothing un toward happened between the pair. You had become concerned about you de-facto not coming home and had gone out to look for her and came across them, in what you concluded was a compromising situation. In fact, it seems that was not correct but you became perhaps understandably emotionally incensed by what you saw and what you concluded and you set upon the deceased punching him on the forehead three times. The last time he was on the ground and your punch led his head to come into contact with a stone on the ground and that, it seems from the medical report, caused his death as well as another injury caused when he fell down. You also assaulted your de-facto wife but you have not been charged in relation to that and there was little injury to her. You then, no doubt panicking, tried to cover up what had happened by giving a false report to others about the pair being found in an even more compromising position than they were, naked etc, but in the event when relatives came to the place that you told them about the deceased had already passed away.

The Prosecutor has referred me to some authorities and has submitted that a starting point for you by way of a custodial sentence should be 5 years imprisonment reduced by other relevant mitigating factors including your early plea of guilty. The other cases, while they are in relation to the same offence, involved the accused in those cases using a weapon or weapons. It is accepted in your case that you punched the deceased and no weapon was involved. The Prosecution submitted that any sentence should mark the gravity of the offence and punish you and protect the community.

On your behalf, the Public Solicitor submitted that you are remorseful and you have demonstrated your contrition and sorrow by your early plea of guilty. You are now aware in the cold light of day of the tragic results of your misapprehension and wrong conclusion but you accept through your plea that you should not have taken the law into your own hands in this unlawful way which resulted in the death of the deceased. A submission has been made to me that you had been drinking vodka and that that may have contributed to your wrongful conclusion and to the event but of course the Court must not, as a matter of principle, take into account by way of mitigation the fact that you as an accused at the relevant time were affected by the voluntary consumption of alcohol. So while it is a factor, is not really a strong mitigating factor. You had taken alcohol and that is all that I can say about it. It was submitted to me that you responded in an inappropriate and criminal matter because of your aroused feelings and as I say I can sympathize with you in relation to what you saw and what you concluded although you should have taken a little bit more time to ascertain what was the rightful situation. As a result of what has happened, your relationship with your de-facto is now over. You have a 2 year old son for whom you are responsible and I am grateful for the letter which you have written to me setting out your concerns about your son and accepting your responsibilities towards him and you seek consideration in relation to that. You have investigated but have been unable to complete any custom settlement under the legislation but you express the firm view that you want to do something about that when you are eventually released and that is again to your credit. You have been in custody for three months and a little longer.

When I consider the question of sentence I must have regard to the maximum sentence imposed by the law. I must hold you accountable for the very serious crime that you have committed and accountable to the community generally. I say it is very serious because one of the most serious things that anyone can do is take the life of someone else. You know that, you have responded and pleaded appropriately but when one deals with the loss of a human life, the Court must have regard to the fact that that is one of the most tragic and most serious crimes that can be committed. Here of course, you do not face, as you may have, the potential life imprisonment for intentional homicide. The case as I have said calls to be dealt with under a maximum sentence of 10 years. You are responsible and I must be sure that you are acknowledging that responsibility and I am satisfied that you are. I must of course denounce your conduct because jumping to the wrong conclusion, as you did very quickly, is something that should never have happened and may not have happened perhaps if you were not somewhat fueled by alcohol but that is your problem. I must deter other people from violence which results in death and I must note that there was more than one blow in this case causing injury and the last may be the one that actually caused the death. I must try to protect the community and other individuals from this sort of response and this sort of result.

There is always in the sentencing exercise, a balancing of aggravating and mitigating factors. On the aggravating side of things there was, of course, the actual and repetitive use of violence with the punches. There was the loss of life which I have already referred to, there was the vulnerability of the victim here, because it seems that he was asleep when you came across him and presented no immediate threat to your de-facto or you at that stage. It was an opportunistic offence and these does not appear to be any premeditation involved. On the mitigating side of things, you have pleaded guilty for which a generous allowance will be made. There has been remorse and contrition which you have expressed through your lawyer and is the fact of your previous good character, because you are a first offender and have no previous criminal record. No one, a Judge, a Court or anybody can effectively replace a life in the exercise of its jurisdiction and responsibilities. That human life is gone and can never be replaced but the Court must respond appropriately in endeavouring to redress the balance by imposing a suitable and proper sentence within the law and in the circumstances.

The Prosecutor and your lawyer agreed that the starting point for this offence could be 5 years. I am of the view that 6 years is more appropriate for a starting point and that is a starting point which I adopt. I immediately give you a one-third reduction of that for your plea of guilty and for the other mitigating factors which I have referred to and that leaves the appropriate sentence as 4 years and from that I deduct the time you have already been in custody of 3 months so the sentence which I arrive at is a sentence of 3 years and 9 months imprisonment. That even in terms of your letter is a little less than you might have expected or were prepared to serve and you can be give credit for that also, so the sentence that I today impose is one of 3 years and 9months imprisonment.

You have 14 days to appeal that sentence if you are unsatisfied with it.

Dated AT PORT VILA on 31 January 2006

BY THE COURT

P. I. TRESTON
Judge