IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Criminal Appeal Jurisdiction)

Criminal Appeal Case No. 06 of 2004

BETWEEN:

PUBLIC PROSECUTOR
Appellant

AND:

WILLIAM NIALA
WALTER NIALA
HANSON TOALILIU
Respondents

Coram: The Hon. Chief Justice Vincent LUNABEK
The Hon. Justice Bruce ROBERTSON
The Hon. Justice John von DOUSSA
The Hon. Justice Daniel FATIAKI
The Hon. Justice Patrick TRESTON
The Hon. Justice Hamlison BULU

Counsel: Ms. K. Tavoa for the Appellant
Mr. P. Bartels for the Respondents

Date of Hearing: 28 October 2004
Date of Judgment: 05 November 2004

JUDGMENT

This is a prosecution appeal against the sentence of Saksak J in Santo on 9 September 2004. The three accused were initially charged with intentional homicide and aiding that offence and pleaded not guilty but when the charges were amended and reduced they changed their pleas to guilty.

William Niala and Walter Niala were ultimately charged with intentional assault causing death contrary to section 107 (d) of the Penal Code Act [CAP. 135] and Hanson Toaliliu was charged with aiding and abetting that offence contrary to section 28 and 107 (d) of the Penal Code Act. The maximum penalty for each offence is imprisonment for 10 years.

The sentencing judge adopted a starting point of 9 years imprisonment but reduced that by one third for the following points which he noted: -

(a)	A Custom ceremony involving 15 pigs in order to restore peace between the families,

(b)	The guilty pleas on the amendment of the charges, and

(c)	The fact that the respondents William Niala and Hanson Toaliliu had no previous convictions.

The three respondents were sentenced to 6 years imprisonment. William Niala and Walter Niala were directed to serve 3 years with immediate effect, less the five months on remand since March 2004. The balance of three years in each case was suspended for a period of three years from the date when the first term of three years ended.

As to Hanson Toaliliu, His Lordship imposed a similar sentence but directed that she would not serve the first three years of her term immediately provided that within 14 days from the date of sentence, she paid a fine of VT80, 000 to the Court Registry. Failure to do that would result in her serving 3 years imprisonment. The second period of three years was suspended for three years starting from the date when she paid the fine. It was directed that she forfeited her surety of VT40, 000 as part of the VT80,000 fine leaving an effective balance of VT40, 000 to be paid. Theoretically if Hanson Toaliliu had paid nothing she would have had to serve 6 years imprisonment.

The three respondents are siblings and on 27 March 2004 at Big Bay, the respondent Hanson Toaliliu complained to her two brothers that the deceased had been watching her at times when she was changing and bathing and hiding and removing her under pants and staining them with sperm. The matter had earlier been referred to the Chiefs but unfortunately no meeting was called to discuss and resolve the matter. The three respondents went down to the deceased's village. He was in the gardens at the time. They waited for him and upon his return the respondent William Niala assaulted the deceased by punching him five times in the head causing him to fall to the ground. William continued to punch and kick the deceased in the ribs. The respondent Walter Niala then joined his brother in assaulting the deceased by kicking and punching him on his body as he lay on the ground. The deceased lost consciousness. The respondent Hanson Toaliliu stood to one side and encouraged her brothers in the assault on the deceased.

The deceased was picked up and washed in the river by the respondents and then taken to their home where he later died.

A post mortem report indicated that the deceased who was aged 36 had died from hemorrhagic shock secondary to injuries which included fractures to three ribs, bruising over much of the chest wall and suspected fractures of two more ribs. There was bruising over the umbilicus and the right and left inguinal regions extending into the pubic area and over the genitals. His scrotum was bruised, swollen and full of blood and superficial bruises were noted in the abdominal walls laterally and on both right and left loins. The deceased's lungs and liver were bruised but not lacerated. His small and large bowels and both kidneys were extensively bruised. His spleen had sustained a laceration 2cm long and 4cm deep. It was estimated that the deceased's total blood loss had been 3, 000ml.

The Prosecutor's appeal is on the basis that the penalty imposed by the trial judge was manifestly inadequate and that no reasons were provided for reducing the time to be served of the six year sentence imposed on the respondent brothers to three years, and, in suspending the balance of three years. The appellant submitted that the sentences were not in proportion to the criminality of the conduct even though the Learned Judge took into account the respondents' act on a defenceless person as an aggravating feature. It was submitted that suspension of part of the sentence was inconsistent with the legislation. The appellant submitted that the starting point should have been within a range of eight to ten years and taking into account the guilty plea and custom settlement, the sentence should have been reduced to between 5 and 7 years.

The respondents submitted that the Court should have allowed a discount of one third for a guilty plea and a further one-third for the custom ceremony to give a final effective sentence of between 3 and 4 years and that the sentence in relation to Hanson Toaliliu should be suspended because of her family responsibilities and because there is no female prison on Santo and because she had originally been a victim of the unwanted attentions of the deceased. Counsel submitted that his Lordship also gave no recognition to compensation by custom.

We deal first with the question of suspension of the sentences.

Section 1 of the suspension of sentences Act [Cap. 67] provides as follows: -

"PROVISION FOR SUSPENSION OF SENTENCES

The execution of any sentence imposed for an offence against any Act, regulation, rule or order may, by decision of the court having jurisdiction in the matter, be suspended subject to the following condition -

(a)	when the court which has convicted a person of an offence considers that, in view of the circumstances and in particular the nature of the crime and the character of the offender, it is not appropriate to make him suffer a penalty it may in its discretion order the suspension of the execution of any sentence it has imposed upon him, on the condition that the person sentenced commits no further offence against any Act, regulation, rule or order within a period which shall be fixed by the court, not exceeding 3 years;

(b)	if, at the end of such period, the person the execution of whose sentence has been suspended in accordance with this section shall not have been convicted of any further offence against any Act, regulation, rule or order, the sentence shall be deemed to be annulled;

(c)	if, before the end of such period, the person the execution of whose sentence has been suspended in accordance with this section is further convicted of any offence against any Act, regulation, rule or order, the original sentence shall be immediately executed, in no case concurrently with any subsequent sentence;

(d)	the court shall, when ordering the suspension of the execution of the sentence, explain clearly to the person sentenced the nature of the order and shall ascertain that he has understood its meaning."

It is clear that the above provision does not allow for suspension of part of a sentence of imprisonment. The circumstances which the Court must take into account under subsection 1 (a) namely the nature of the crime and the character of the offender, must apply to the whole of a sentence and not to part of it. We are unanimously of the view that His Lordship erred in suspending 3 years of the 6 year sentence. 

Even if that were not the case, we are of the view that His Honour failed to detail the circumstances and in particular, the nature of the crime and the character of the offenders justifying such suspension.

In the case of Public Prosecutor v Mahit Tom Mathias [1984] VUCA 5; [1980-1994] Van LR 140; Criminal Case No. 3A of 1984, the Court of Appeal has already held that in a sentence of imprisonment it is the whole sentence which must be suspended and there is no power to suspend part of the sentence.

Furthermore, in relation to the respondent Hanson Toaliliu His Lordship effectively suspended her sentence twice by making the suspended sentence imposed in regard to the second three years conditional on her having paid VT80, 000 in respect of the first three years that she was ordered to serve. We have already indicated in Public Prosecutor v Hollingson Issachar Court of Appeal; [2003] VUCA 17; Criminal Case No. 5 of 2003 that such an effect, that is a double suspension, would be an impermissible sentence. Accordingly, His Lordship erred in imposing the sentence that he did upon Ms. Toaliliu. We turn then to the question of the appropriate sentence.

We have already noted that the maximum penalty faced by the respondents was ten years imprisonment. His Honour, in the light of some similar cases, imposed a sentence of nine years imprisonment on each of the respondents reduced by one-third for the reasons which he stated to six years imprisonment. We consider that that approach was in error. 

Our assessment of the overall culpability of the respondents in all of the circumstances merited a term of seven years imprisonment. In arriving at that conclusion we take into account the maximum penalty of ten years imprisonment, to which we have already referred, and the aggravating features of this incident. This was a premeditated, vicious attack on a defenceless man resulting in his death. 

The Court in assessing that term also takes into account the background leading up to the assault, including the fact that the respondent Hanson Toaliliu was herself a victim. We also recognize that there were elements of frustration in the behaviour of the respondents who had endeavoured to have the matter traditionally resolved by the local chiefs without success. Those matters give some explanation to the incident but do not excuse what was a total overreaction by the three accused. 

Having said that we agree that the sentences must be reduced in the light of the very early pleas of guilty by the respondents to the amended charges. In recognition of an allowance for pleas of guilty we also take into account that the pleas inevitably saved the trouble and expense of a defended hearing. In all the circumstances the credit due to the respondents must be tempered by the fact that they had no real defence even to the amended charge in view of the eyewitnesses and the admissions which they made to the authorities. In addition the three respondents appeared to express genuine remorse for the consequences of their actions. We consider that a deduction of eighteen months is appropriate to recognize the pleas of guilty.

We turn next to consider the effect of section 119 of the Criminal Procedure Code [Cap. 136] which provides as follows:

"Upon the conviction of any person for a criminal offence, the court shall, in assessing the quantum of penalty to be imposed, take account of any compensation or reparation made or due by the offender under custom and if such has not yet been determined, may, if he is satisfied that undue delay is unlikely to be thereby occasioned, postpone sentence for such purpose."

This Court has already referred to the issue of compensation by custom in such cases as Public Prosecutor v Gideon [2002] VUCA 7; Criminal Case No. 3 of 2001 and it is clear that the Court must take into account such matters.

In this case the compensation by custom was carried out expeditiously and genuinely. Ten pigs were provided to the family of the deceased on 29 March 2004 that was within two days of the incident itself which occurred on 27 March 2004. The remaining five pigs were provided on 20 July 2004 that was well before the sentencing which took place on 9 September 2004.

This is not a case where the compensation by custom took place near to the sentencing date in order to influence the result of such sentencing. As we have said we consider that it was a genuine effort to compensate by way of custom and the number of pigs involved was of significant value.

Counsel for the respondents endeavoured to persuade us that in accordance with the Chief Justice's decision in Public Prosecutor v Saki Georges [2004] VUSC 68; Criminal Case No. 18 of 2004 there should be a reduction of 1/3 of any sentence for plea of guilty together with a further 1/3 by way of compensation by custom. That was a case which involved 2 counts of rape, and we do not consider that such a precise mathematical deduction is appropriate in this instance.

We consider it appropriate to allow a further deduction of 18 months from the sentence of seven years imprisonment to recognise the custom compensation to reach a net four years.

We see no reason for suspending the sentence of four years imprisonment in relation to William Niala or Walter Niala. Indeed we were not urged to do so by their counsel. There is nothing in the circumstances and in particular the nature of the crime or the character of the offenders which could satisfy a Court that it was not appropriate to impose any penalty or anything less than an immediate custodial sentence.

We are persuaded that a difference between the two male respondents and their sister can be accepted. Although she was fully involved in the offending of her brothers to the extent that she was present at the scene of the crime and actively encouraged them, she did not take part in any actual physical violence upon the deceased. We hasten to add that had Hanson Toaliliu been subject to an immediately effective term of imprisonment along with her brothers an appeal against any such term of imprisonment would have been unlikely to succeed.

Be that as it may Hanson Toaliliu immediately complied with the conditions imposed by the sentencing judge in paying the moneys required within 14 days and there may have been some understandable expectation on her part that that would be all that was required for her to avoid full time incarceration.

Furthermore she was the original victim to this unfortunate incident and she has responsibility for the welfare of children who are dependent upon her. That would not of itself necessarily avoid a sentence of imprisonment. Nor can we ignore the absence of a female prison in Santo so that if she were now imprisoned, she would be physically removed from her children and her island in being transported to Port Vila for incarceration. In our view that would impose an additional hardship upon her greater than upon her brothers who will be able to serve their imprisonment in Santo.

For the above reasons we consider that the sentence for Hanson Toaliliu can be different from that of her brothers. 

In relation to William Niala and Walter Niala the appeal is allowed and the sentence imposed is quashed. Each respondent is sentenced to imprisonment for a term of 4 years with effect from the date of his original sentence. No suspension will apply.

In relation to the respondent Hanson Toaliliu, the appeal is allowed and the sentence imposed is quashed and she is sentenced to 3 years imprisonment suspended for a period of 3 years from the date of her original sentence together with a fine of VT80, 000 which she has already paid.

Dated at Port Vila this 05th day of November 2004

BY THE COURT

VINCENT LUNABEK CJ
BRUCE ROBERTSON J
JOHN VON DOUSSA J
DANIEL FATIAKI J
PATRICK TRESTON J
HAMLISON BULU J