Public Prosecutor v Tabi [2010] VUSC 161; Criminal Case 27 of 2010 (15 October 2010)

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

Criminal Case No. 27 of 2010

PUBLIC PROSECUTOR

V

PASCAL TABI

Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Mr Simcha Blessing for Public Prosecutor and the State
Mr Kevin Nathan for the Defendant

SENTENCE

Introductions

1. The defendant Pascal Tabi was charged with one count of Intentional Homicide contrary to section 106(1)(b) of the Penal Code Act Cap 135.
   
2. He pleaded guilty to the charge on 13th September 2010. A conviction was entered against him and he was remanded in custody to await sentence. He has been under remand since his committal from 17th August 2010.
   
3. The defendant is currently serving a 2 years imprisonment term imposed on him by the Magistrate's Court on 16th July 2010. He was charged with Sexually Abusing And Harassing a Family Member contrary to section 4 (1)(b) and (c) of the Family Protection Act 2008.
   

Facts

4.1. The defendant committed the offence on or about midnight of 1st May 2010 at his home at Beleru. He and his wife had had 6 bowls of kava each earlier that night. While they were having kava together, the wife told her husband a woman by name of Des had told her of her suspicion that he was trying to kill her. The defendant then told her not to entertain such fallacious ideas. The wife then asked him why he was protective of Rehab, his step daughter. At this, the defendant responded aggressively and an argument followed. The defendant then grabbed a bush knife and slashed his wife twice on the right side of her head. The wife ran outside their kitchen house and then fell to the ground. The defendant then went into the house, woke Rehab up and told her he had killed her mother. He then dragged the body of his wife in front of the house when she was bleeding excessively but she was still alive at that point. She spoke the following words in Bislama: "Dady, mi harem se bae mi tet." At this the defendant then grabbed a piece of wood and struck his wife on the head and neck. She died as a result of those injuries.

4.2. The defendant then dragged the deceased's body to another location near to a "Nakatambol' tree. There he gathered firewood and four truck tyres and started a fire with a candle. When the fire started to burn, the defendant carried the corpse of his wife and threw it into the burning fire. He then left the corpse to burn in the fire, returned to his house, had sex with his step daughter Rehab and then went to sleep til morning. In the morning he went to check the body. It was totally burnt by the fire. In the afternoon of the same day the defendant collected the ashes, the remainder of the bones and wires from the wheels together, dug a hole under the tree and buried the ashes and the bones of his deceased wife in it.

4.3. On 7th May 2010 the defendant called his brother-in-law in Port Vila and told him that he and his wife were having problems and that as a result she had told her daughter Rehab she was leaving home and that Rehab should take care of her brothers and sisters. He said his wife had left home on Monday 3rd May 2010. Search parties were arranged to search for the deceased but all searches were unsuccessful. The search was called off after a week and the defendant proposed to make arrangements for a custom ceremony to venerate the supposed death of his wife.

4.4. On 15th May 2010 the defendant was arrested on a complaint of sexual harassment and kept in custody. In the meantime the search was renewed and continued on until 28th May 2010 after a visit to the defendant at the Correctional Centre by a pastor, a chief and another person when the defendant made confessions and admissions to them that he had killed his wife on 1st May 2010. At this the defendant was brought to the police station on 2nd June 2010 when an interview was conducted. On 5th June 2010 he admitted to the police and uncovered the whole story in a Record of Interview. The police went to the crime scene and took photographs of where the cutting, hitting and burning took place, including the place where the ashes and bones were buried. The photographs are part of the bundle of documents presented as facts before the Court.

Submissions By Prosecutions

5.1. In determining the punishment to be imposed the prosecution submitted the following aggravating features –

• (a) There was a degree of planning involved.
  
• (b) The offence was committed in the middle of the night.
  
• (c) There was a breach of trust on the part of the defendant.
  
• (d) A weapon i.e a bush knife was used to cut the deceased first and then later a piece of wood was used.
  
• (e) The body of the deceased was treated inhumanely and without respect by dragging on the ground to another location.
  
• (f) The deliberate burning of the body.
  
• (g) The total destruction in order to conceal all evidence including the burial of the ashes and remains of the bones.
  
• (h) Lying to the family members as to the whereabouts of the deceased for almost a month.
  

5.2. It was further submitted by the prosecution that the starting point for this defendant in light of the aggravating features in addition to the seriousness of the offence, should be the maximum penalty imposed by Parliament. For an offence under section 106 (1)(b) the maximum penalty is life imprisonment. They relied on the case of Queen v. Oliver (1982) 7 A Crim R. 174 where the Court said this at page 117:

"The first initial consideration is the statutory maximum prescribed by the legislative for the offence in question. The legislature manifests its policy in the enactment of the maximum penalty which may be imposed. The Courts are of course bound by the statutory limit itself as well as by the legislative policy disclosed by the statutory maximum." (emphasis added).

5.3. Reliance was also placed upon the Australian case of Veen v, The Queen (No. 2) [1998] HCA 14 where the Court said:

"The second subsidiary principle material to this case is that the maximum penalty prescribed for an offence falling within the worst category of cases for which that penalty is prescribed." (emphasis added).

5.4. The Court then referred to the earlier case of Ibbs v. The Queen [1987] HCA 46; (1987) 61 ALJR 525 at 527; [1987] HCA 46; 74 ALR 1 at p.5 where the Court said in expanding the above view:

"That does not mean that a lesser penalty must be imposed if it is possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worse category." (emphasis added).

5.5. In Vanuatu the cases that fell within the worse category and where life imprisonment were imposed were –

• (a) PP v. Iakis, Posan and Nerep unreported No. 42 of 1994. Iakis was sentenced to life imprisonment with recommendation that he serves 20 years before release. Posan and Nerep were each sentenced to 15 years imprisonment.
  
• (b) PP v. Kalopat [1997] VUSC 7, where the defendant was sentenced to life imprisonment with recommendation that he serves 12 years before release.
  

5.6. Other serious cases of premeditated intentional homicide referred to by the prosecutions were –

• (a) Massing and Others v. PP unreported CA 2008 where sentences of 18, 14 and 10 years imprisonment were imposed.
  
• (b) PP v. Malsokley [2007] VUSC 91 where sentences 17 years and 14 years imprisonment were imposed.
  
• (c) PP v. Kalo and Takae [2004] VUSC 1 2004 where sentences of 16 years imprisonment were imposed.
  
• (d) Sapir and Jimmy v. PP [1996] where 20 years imprisonment were imposed but on appeal reduced to 14 years imprisonment.
  

5.7. The Court of Appeal laid down the general principles for serious offences in Saipir and Jimmy when they said:

"Every civilized community has a right, if not a duty, to condemn those who are prepared to rob another of their life. A sentence must convey the community's condemnation of such behavior. The Court has a duty to impose penalties which hopefully act to deter others who are similarly minded to act in such an outrageous manner.

The Court equally has a duty to ensure that sentences imposed are no greater then necessary to achieve the public's proper interest." (emphasis added).

5.8. This appears to fall in line with the purposes of sentencing laid down in the Australian case of Veen (No. 2) where the Court said:

"............... The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none or them can be considered in isolation from the others when determining what an appropriate sentence is in a particular sentence but sometimes they point in different directions." (emphasis added).

5.9. In Saipir and Jimmy the Court of Appeal then arrived at the conclusion that on the basis of the information available before them, the proper starting point in respect of that offending "......could not have been more than 25 years."

5.10. The prosecutions finally submitted that –

• (a) There was no mitigating factor relating to the defendant's offending.
  
• (b) The case fell within the category of the most serious criminal offences which deserves a life imprisonment.
  
• (c) The case presented one of the most gruesome killings of its kind in the living memory of Vanuatu.
  

As such, the Court should impose the maximum penalty of life imprisonment. Alternatively, if the Court was minded to consider a lower starting point, it should not be any lesser than 40 years. It was further submitted that if the Court was minded to make some allowances for mitigating factors, it should not be more than 3 years.

Submissions By Defence

6.1. The defence counsel submitted the following cases to assist the Court in determining the appropriate sentence –

• (a) PP v. Massing & Others [2005] VUSC 146. CRC 68/2005;
  
• (b) PP v. Nelsor Kalo [2004] VUSC 1; and
  
• (c) Pakoa v. PP [2008] VUCA 7.
  

Nelsor Kalo and Takae were sentenced to 14 years imprisonment each for the charge of intentional homicide. Pakoa John was sentenced to 15 years imprisonment which sentence was upheld by the Court of Appeal. Based on these cases Mr Nathan submitted the starting point for the defendant should be in the region of 20 years imprisonment.

6.2. For the mitigating factors, Mr Nathan submitted the following:-

• (a) That he surrendered himself to police on 18th July 2010.
  
• (b) That he cooperated with the police and made admissions to them on 5th June 2010 and agreed to a record of interview.
  
• (c) That he pleaded guilty to the offence.
  
• (d) That he was remorseful.
  

Counsel placed reliance on PP v. Gideon [2002] VUCA 7 where the Court of Appeal said appropriate reduction should be made for a plea of guilty and that a substantial reduction should be made particularly when a defendant pleads guilty at the first available opportunity.

6.3. The Court rejects the defendant's surrender in 2010 as a mitigating factors. It has no relevance to this case. Further, the Court rejects any suggestion that the defendant was remorseful. But it is the view of the Court a small allowance should be made for his cooperation with the police after 28th May 2010. Further, it is the view of the Court a small reduction should be made in respect to his guilty plea although the Court accepts prosecution submissions that it was not a guilty plea at the first available opportunity. He could have made admissions to his brother-in-law Albert Johnny on 7th May 2010 when he broke the news of his wife's disappearance to him, although he was hiding the truth and being dishonest and deceitful.

Views, Comments and Observations

7.1. From the Vanuatu Cases cited by the prosecutor and the defence counsel, it appears clear that in Vanuatu the only appropriate penalty for an offence under section 106 (1)(b) of the Penal Code Act is a sentence of imprisonment.

7.2. And from the Vanuatu Cases referred, the sentencing range appears to be from 14 years to life imprisonment. Each case was decided on its own facts, merits and circumstances.

7.3. In the Saipir and Jimmy Case the Court of Appeal placed the starting point at 25 years imprisonment. This is too low for this defendant.

7.4. From its facts, merits and circumstances this case exceeds by far in its seriousness all those previous and earlier cases cited. It presents the most horrendous and barbaric killing in Vanuatu thus far. It falls within the worst category of intentional homicide cases of its kind. This is a case where the Court can impose the maximum penalty to give full force and effect to the policy of the legislative according to Queen v. Oliver and Ibbs v. The Queen to achieve the purposes of punishment outlined in the Vanuatu case of Saipir and Jimmy and the Australian case of Veen (No.2).

7.5. However, It would be absolutely necessary only to impose a life imprisonment term on an offender who had no mitigating factor whatsoever on which he can rely to request a reduction of sentence. Where therefore there is a single mitigating factor, it is necessary in my view that the Court should impose a fixed term of imprisonment as a starting point and make the necessary reduction there-from. This case falls within this category.

Conclusion

8.1. The Court will therefore impose a sentence of imprisonment on the defendant. The sentence will serve as –

• (a) Adequate punishment for his offending.
  
• (b) Deterrence to the defendant and to others.
  
• (c) A public condemnation on the defendant for a horrendous and barbaric killing that is not warranted in the community.
  
• (d) Protection of the society.
  

This punishment leaves some room for retribution and for reform of the defendant.

8.2. I consider that starting point for this most serious offending is 45 years imprisonment, taking account of all the aggravating features and the public interest of the case.

8.3. Pascal Tabi the Court therefore hereby convicts you and sentences you to 45 years imprisonment.

8.4. The Court deducts a period of 12 months to give credit for your guilty plea and your cooperation with the police at the time of interviews. That leaves the balance at 44 years. You have been on remand in custody for 5 months from 1st May. These are deducted also from the 44 years leaving a balance of 43 years and 7 months to serve.

8.5. This sentence of 43 years and 7 months are consecutive to the 2 years imprisonment imposed on you in Criminal Case No. 111 of 2010.

9. That is the sentence of the Court. It is effective as of today 15th October 2010.
   
10. You have a right of appeal against this sentence within 14 days.
    

DATED at Luganville this 15th day of October 2010.

BY THE COURT

OLIVER A. SAKSAK
Judge