Public Prosecutor v Dick [2010] VUSC 167; Criminal Case 128 of 2009 (29 October 2010)

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

Criminal Case No. 128 of 2009

PUBLIC PROSECUTOR

v.

KATLINE TAMANU DICK

Coram: Justice D. Fatiaki

Counsel: Mr. G. Takau for the State
Mr. T. Loughman for the Defendant

Date of Sentence: 29 October 2010

SENTENCE

1. On 30 September 2010 the defendant was convicted on her plea of guilty to an offence of Intentional Assault Causing Temporary Damage contrary to Section 107 (b) of the Penal Code. She had originally been charged with and pleaded not guilty to an additional offence of Killing Unborn Child which was withdrawn by the Public Prosecutor during the course of the proceedings.
   
2. The brief facts of the case outlined by the prosecutor tells of how the defendant approached the complainant in August 2007 at her home at Freshwota No. 3 area and questioned her about an illicit affair she was allegedly having with the defendant's husband. Harsh words were exchanged and matters escalated with the defendant slapping the complainant twice on the face. The incident was later reported to the police and the defendant was interviewed and she frankly admitted assaulting the complainant.
   
3. Katline Tamanu Dick the offence that you have been convicted of carries a maximum sentence of imprisonment for 1 year. I accept that it is not the most serious offence of intentional assault under the Penal Code but nevertheless it is an offence that renders you liable to a sentence of imprisonment.
   
4. I have noted the additional more serious charge that you originally faced and which you denied and was subsequently withdrawn, as well as the more serious circumstances of the case that was originally outlined by the prosecutor which included, the use of a piece of wood during the assault and the fact that the complainant was pregnant at the time and pre-maturely lost her foetus soon after the assault. You denied these facts and the prosecutor agreed not to pursue them. I am therefore constrained to ignore those facts in sentencing you in this case.
   
5. I have received helpful submissions from both counsels and a pre-sentence report prepared by the probation service and from which I derive your relevant personal characteristics as follows:
   
   • You are 36 years of age and since 1992 you were in a steady de facto relationship up until the time of the incident. You are now separated from your de facto partner;
     
   • You have 3 children from your relationship aged 14, 11 and 7 years that you are presently supporting on your own with some help from your close relatives;
     
   • You are an active member of the Assemblies of the God church in Tanna.
     
6. You explained in Court and to the probation officer that the incident arose because of your de facto partner's infidelity with the complainant and the assault occurred because of your frustration and anger at the complainant's seeming lack of concern for the consequences on your family.
   
7. I understand that a kastom reconciliation ceremony was performed by you to the complainant and her family in which you provided a pig, a mat and VT5, 000 to the complainant and also VT1, 000 to her chief.
   
8. Prosecuting counsel submits on the basis of several precedents that a short prison sentence is appropriate in this case and, counsel refers to the use of a piece of wood during the assault and the pregnant condition of the complainant as aggravating factors. I have said however that both facts were disputed by the defendant and withdrawn as part of the admitted facts and therefore cannot be relied upon in sentencing the defendant.
   
9. Defence counsel agrees with the court's limited view of the facts and highlights the repeated nature of the complainant's and the defendant's de facto partner's infidelity, in addition to, other mitigating factors in the case including:
   
   • The defendant's early admission to the police and her guilty plea in Court;
     
   • The fact that the defendant is the sole parent and provider for her 3 school age children;
     
   • The lengthy delay of 3 years in finalizing this case since the incident occurred;
     
   • The fact of the custom reconciliation ceremony and the remorse and apology offered by the defendant and accepted by the complainant and her chief; and
     
   • The fact that you have recently found regular full-time employment with a supportive employer.
     
10. Katline Tamanu Dick whilst the Court can sympathize with the unfortunate domestic situation that you found yourself reluctantly dragged into by your unfaithful partner and the inevitable frustration and anger that you must have felt towards the complainant, that does not excuse or justify you taking the law into your own hands and administering summary corporal punishment on the complainant, simply because, you could not persuade your de-facto partner to stop his illicit affair.
    
11. In sentencing you I must deter and remind you not to repeat your actions. I must also hold you responsible for your actions. The sentence of the Court is 3 months imprisonment suspended for 12 months.
    
12. This sentence means that you will not have to go to prison today, but, if you re-offend and are convicted of another offence in the next 12 months then you will be required to serve this sentence of 3 months imprisonment together with whatever additional sentence you may receive for your re-offending. Needless to say, if you stay out of trouble for the next 12 months you will not have to serve this sentence at all.
    
13. I am confident that you have learnt a valuable lesson from this unfortunate incident and you will not abuse this Court's leniency towards you. I urge you to continue to work hard to care for your 3 young dependant children. If you raise your children to become law-abiding and useful citizens of Vanuatu that will be the best outcome for this sad and unfortunate experience in yours and their lives.
    
14. You have 14 days to appeal against this sentence if you do not agree with it.
    

DATED at Port Vila, this 29th day of October, 2010.

BY THE COURT

D. V. FATIAKI
Judge.