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

Criminal Case No. 46 of 2005

PUBLIC PROSECUTOR

-v-

JACK TOM NALAU
NELSON JOB

Mr Lent Tevi for the Public Prosecutor 
Mr Peter Bartels for the Defendants 

SENTENCE

The following are the sentences of the Defendants JACK NALAU and NELSON JOB. They are both and jointly charged with four (4) offences as I set them below:

•	In count 1:	Unlawful Entry in a House where the place is used for human habitation, contrary to Section 143(1) of the Penal Code Act [CAP. 135].

•	In count 2:	Intentional Assault on the body of another person causing damage to the body of another person which results in death, contrary to Section 107(d) of the Penal Code Act [CAP. 135].

•	In count 3: 	Intentional Assault on the body of another person causing damage on the body of another person and the damage so caused is permanent, contrary to Section 107(c) of the Penal Code Act [CAP. 135].

•	In count 4:	Intentional Assault on the body of another person causing damage of a temporary nature, contrary to Section 107(b) of the Penal Code Act [CAP. 135].

The facts can be summarized as follows:

On 1 June 2005 at about 7.20PM, Ms Fang Xiao returned from Wen’s Shopping Center at Nambatu area, Port-Vila to Mr Fang Xiao Wen’s house. Ms Fang Xiao is the sister of Mr Fang Xiao Wen. Ms Fang Xiao was in her brother’s house. She was looking after Mr Wen’s son, Jason and she also prepared for the family food. Mr Wen’s wife was at that time in China. She prepared the food in the kitchen.

Mr Wen also returned from Wen’s shopping Centre (his own shop) and went straight to his computer at home and worked on his computer.

While Ms Xiao was in the kitchen, she heard something outside the main door of the house. She then left the kitchen to find out what is happening. She then went straight to the main door. Mr Wen also left his computer to see what was going on. He also went straight to the main door behind his sister.

At the door Ms Xiao saw the door was being forced to open. The door was forcefully opened. She saw the two (2) defendants: Mr Jack Nalau and Mr Nelson Job. The Defendants then entered the house. When she saw the Defendant, Jack Nalau wearing a mask and was holding a small knife and the other Defendant (Nelson Job) was holding an iron bar.

As they entered the house, the Defendant Jack Nalau immediately stabbed the deceased without saying a word. When Ms Xiao saw what was happening, she rushed into the kitchen to grab a small knife for self defence. In the kitchen, she saw the Defendant Jack Nalau stabbed the deceased the second time. The Defendant Jack asked Mr Wen to follow him to the kitchen. Mr Wen followed what he was instructed to do. In the kitchen the Defendant Jack then stabbed Ms Xiao on the chest and then stabbed Mr Wen several times again on his body.

In the meantime, the Defendant Nelson Job then hits the decease on the back of his head and hits Ms Xiao. Mr Wen sustained various wounds on his body. He asked Ms Xiao to ask the police for help. Mr Wen then felt on the floor unconscious. Ms Xiao although she sustained injuries on her chest went up to where the telephone was in the house and made phone call for help.

Before she felt herself unconscious, she could hear Jason, Wen’s son of 5 years of age crying and shouting as he was hit with the iron bar on his face and his shoulder by the Defendant Nelson.

During the assault on both Ms Xiao and the deceased, Ms Xiao retaliated back as self defence by cutting the Defendant Jack Nalau with the knife she was holding.

After the assaults, there were blood all over the kitchen and the living room. Ms Xiao felt unconscious of the injuries she sustained after the Defendants run away.

The Medical Report dated 2 June 2005 showed the following:

“Re. Fang Xiao Wen – Adult Male

The patient had a total of six stab wounds – one below and medial to the left nipple, one in the right hypo-chondrium, a right para-umbilical wound through which a loop of small bowel had prolapsed and three lacerations to the scalp in the left fronto-parietal region rover each breast, and epigastric wound, one on either side at the level of the umbilicus and the 6th in the left iliac fossa through which a portion of the omentum had prolapsed.

In summary a left thoraco-abdominal incision was made and the following injuries documented:-

•	An oblique laceration of the left ventricle – just behind the line of the anterior descending artery and associated with pericardial tamponade
•	Laceration to the lower lobe of the left lung
•	Two lacerations to the right lobe of the liver
•	Penetrating wound to one loop of small bowel
•	Two penetrating wounds to the transverse colon.

All lacerations were repaired as was the wound in the left ventricle.
The wounds to the bowel were closed in routine fashion.
Unfortunately during whole course of the procedure great difficulty had bee experienced in coping with the consequences of the major blood loss the patient had suffered as a consequence of the above mentioned injuries.
Although the patient was kept in the operations theatre at the conclusion of the surgery attached to a life support system – it proved impossible to sustain his circulation and he died in the early hours of the 2nd June.
The cause of death was major blood loss from multiple stab wounds to the chest and abdomen.

Basil R McNamara
Consultant Surgeon”

Re. Ms Xiao

She had a stab wound that creates a hole in the right atrium of her heart. She is still reported by police to be in hospital in Australia and closely monitored by the medical staff there.

As to the child, Jason Fang of 5 years of age, he sustained a swelling and scrap over the right side of his jaw and liner bruise diameter 2 cm across the top of his shoulder which is consistent with a powerful blow from an iron bar.

Mr Peter Bartels, counsel for the two(2) Defendants inform the Court that the Defendants disagree with the facts presented by the prosecution on the following points:

•	The Defendant Jack Nalau was not wearing a mask.
•	Upon entering the house there was no immediate stabbing of the deceased victim.

The Defendant Jack Nalau however asserts the following facts as the correct facts:-

•	The Defendants pushed their way through the deceased’s house and held the deceased victim tightly.
•	The Defendant stabs Wen after the Defendant panics after the deceased victim panics and starts hitting (him) the Defendant.
•	The Defendant stabs the deceased after the deceased victim has stabbed him.
•	The Defendant stabs Ms Xiao after she stabs him in defence of her brother (the deceased).
•	There were general melee and confusion.
•	The Defendant runs away from Wen’s store and then attempts to commit suicide by cutting his throat.
•	The Defendant is found by the police in Parliament House grounds semi-conscious on 1st June 2005 the following morning.

The Defendant Nelson Job, however asserts the following facts as the correct facts:-

•	The Defendant Jack Nalau stabs the deceased victim when Jack Nalau panics after the deceased victim panics and when the deceased victim and his sister start to stab the Defendant Jack Nalau;
•	The Defendant hits the deceased to the back of the head when he becomes confused and scared. The Defendant then in a panic hits Ms Xiao when she panics and tries to stab the Defendant Jack Nalau.
•	The Defendant strikes Jason on his face and shoulder in a wild panic as there was much confusion.
•	The Defendant ran from the scene and was very scared and remorseful at what he had done.

On the factual points of dispute between the version of facts as alleged by the prosecution and the version of facts by the Defendants, there is no Newton hearing. Further the factual disagreement are not critical for the sentence of this case. It is common ground that in such a circumstance, the Court must accept the version of facts of the Defendants in that the Defendant Jack Nalau did not wear a mask and upon entering the house on 1st June 2005, there was no immediate stabbing of the deceased victim. 

THE LAW

The relevant legal provisions are set out below:-

•	Section 143(1), (2) of the Penal Code Act [CAP. 135]

Section 143 provides as follows:

“143. (1)	No person shall enter or be in any house, building, vessel or other place with intent to commit an offence therein.

Penalty: Imprisonment for 20 years where the place is used for human habitation.
Imprisonment for 10 years where the place is not used for human habitation.

(2)	Subsection (1) shall apply whether or not the offender entered the premises with lawful authority or whether or not he broke any part of the premises in order to enter them and whether or not he obtained entrance by means of any threat or artifice, or by collusion with any person in the premises.”

•	Section 107(a), (b), (c), (d) of the Penal Code Act [CAP. 135] provides as follows:-

“107	No person shall commit intentional assault on the body of another person.

Penalty:

(a)	if no physical damage is caused, imprisonment for 3 months;
(b)	if damage of a temporary nature is caused, imprisonment for 1 year;
(c)	if damage of a permanent nature is caused, imprisonment for 5 years;
(d)	if the damage caused results in death, although the offender did not intend to cause such death, imprisonment for 10 years.”

•	“Causing death” is defined under Section 109 of the Penal Code in this way:

“109	A person shall be deemed to have caused the death of another person although his act is not the immediate or sole cause of death in any of the following cases-

(a)	if he inflicts bodily injury on another person in consequence of which that other person undergoes surgical or medical treatment which causes death. In this case it is immaterial whether the treatment was proper or mistaken, if it was employed in good faith and with common knowledge and skill; but the person inflicting the injury is not deemed to have caused the death if the treatment which was its immediate cause was not employed in good faith or was so employed without common knowledge or skill;

(b)	 if he inflicts bodily injury on another which would not have caused if the injured person had submitted to proper surgical or medical treatment or had observed proper precautions as to his mode of living;

(c)	if by actual or threatened violence he causes such other person to perform an act which causes the death of such person, such act being a means of avoiding such violence which in the circumstances would appear natural to the person whose death is so caused;

(d)	if by any act or omission he hastened the death of a person suffering under any disease or injury which apart from such act or omission would have caused death;

(e)	if his act or omission would not have caused death unless it had been accompanied by an act or omission of the person killed or of other persons.”

In the present case, both Defendants pleaded guilty as charged in the four (4) counts. Their guilty plea amounts to formal confessions of the existence of every ingredient necessary to constitute the offences they have committed.

The offences of entering a dwelling house with the intention to commit the offence of theft accompanied with most serious injuries on the persons living in the house are very serious offences that cannot be tolerated.

It is unfortunate to note that the circumstances of the offences as described can amount to most serious charges compared to the charges the two (2) Defendants are currently facing. It is unfortunate that the charge of Intentional Homicide has been withdrawn as the circumstances of this case could warrant a term of imprisonment of life. Further the circumstances of these offences amount to an attempted robbery situation. The maximum penalty prescribed by Parliament is much higher than the current charges the Defendants are facing.

However, the Court must sentence the Defendants as charged.

In the present case, the following constitute the aggravating features:-

•	Under Section 143 of the Penal Code:-

-	The Defendants forcefully open the main door of the dwelling house then unlawfully entered on 1 June 2005.
-	By night.

•	Under Section 107 of the Penal Code:-

(a)	The Defendant Jack had a small knife 
(b)	The Defendant Nelson had an iron bar
(c)	The Defendant Jack had stab the deceased victim (Mr Wen) six times on his body. The photographs exhibited show that Wen’s intestines were outside his belly (abdomen).
(d)	The Defendant Nelson had hit the deceased at the back of his head. This intended to cause the death of the victim.
(e)	As a result of the stab wounds the decease lost a lot of blood and died.
(f)	The Defendant Nelson hits a harmless child of 5 years of age (Jason) with an iron bar.
(g)	The Defendants commit all serious wounds on Mr Wen and Ms Xiao in the presence of the child Jason. He witnessed the serious injuries sustained by his father and how the actual violence assaults occurred on the body of his father which resulted in his death.

The law to be applied in case arising under Section 107(d) of the Penal Code Act [CAP. 135] is set out in the Judgment of the Court of Appeal in PP v. Richard Clifford Ierogen, Criminal Appeal Case No. 7 of 2002 and other cases cited therein. I apply such a law in this case.

The appropriate sentence under Section 107(d) is 8 years imprisonment. The term of 8 years must be increased to reflect the aggravating features. The sentence is then increased to 10 years imprisonment under Section 107(d) of the Penal Code Act.

The appropriate sentence for the offence under Section 107(c) of the Penal Code Act in the circumstances of this case, is 4 years imprisonment.

The appropriate sentence for the offence under Section 107(b) of the Penal Code Act, is 5 months imprisonment to reflect the aggravation. 

The appropriate sentence for the offence of Unlawful Entry, contrary to Section 143 of the Penal Code, is 7 years imprisonment increasing to 8 years imprisonment.

In sentencing the two (2) Defendants, the Court take into consideration the following mitigating factors submitted on their behalf by their counsel.

•	Jack Nalau is a young man of 19 ears of age.
•	He has a criminal record. He was convicted and sentence for the offence of Unlawful Entry and Theft and sentenced to a term of imprisonment of 2 years on 17 August 2005.

However this is not contemplated on 29 May 2005 (date he committed previous offence).

•	Nothing prior for violence offences.
•	He is remorseful. He attempted suicide immediately after the commission of these offences.
•	He shows his contrition and he pleaded guilty.
•	The Defendant’s loneliness and his feeling of isolation at being removed from your island.
•	He expresses his remorse and sorrow to the victims and family and to the Court for what he has done.
•	The Defendant has been in custody since June 2005 to 31 August 2005.
•	The Defendant promises that upon his release from his sentence he will do good works for the rest of his life in his person life attempt to atone for the wrong evidenced by these offences.
•	He had benefited from religious instruction whilst he has been in custody and hence his improved attitude towards himself and others upon his release from his sentence.

The Defendant Nelson Job is of 20 years of age. He has a wife and his wife was pregnant at the time he came in the custody.

•	He has a limited and very recent criminal record of 2 years imprisonment for Unlawful Entry and Theft imposed on him by this Court on 17 August 2005.
•	He has nothing prior for violent offences.
•	He is remorseful.
•	His contrition as demonstrated by his plea of guilty.
•	He was brought and kept in custody since 5 June 2005.
•	He has the prospects of his rehabilitation and release back into the community.

Having considered the mitigating factors and what your counsel said on your respective behalf and upon balancing them with the aggravating features detailed in the early part of this sentence. Each and both Defendants are sentenced as follows:

Jack Nalau

•	Unlawful Entry, contrary to Section 143 of the Penal Code Act [CAP. 135]: 7 years imprisonment.
•	Intentional Assault, contrary to Section 107(b) of the Penal Code Act [CAP. 135]: 4 months imprisonment.
•	Intentional Assault, contrary to Section 107(c) of the Penal Code Act [CAP. 135]: 3 years imprisonment.
•	Intentional Assault, contrary to Section 107(d) of the Penal Code Act [CAP.135]: 9 years imprisonment.

Nelson Job

•	Unlawful Entry, contrary to Section 143 of the Penal Code Act [CAP. 135]: 7 years imprisonment.
•	Intentional Assault, contrary to Section 107(b) of the Penal Code Act [CAP. 135]: 4 months imprisonment.
•	Intentional Assault, contrary to Section 107(c) of the Penal Code Act [CAP. 135]: 3 years imprisonment.
•	Intentional Assault, contrary to Section 107(d) of the Penal Code Act [CAP. 135]: 9 years imprisonment.

Each and both of the Defendants shall serve their terms of imprisonment concurrently. This means that each and both Defendants shall serve all their terms of imprisonment at once. In practical terms each and both Defendants shall serve the more severe and longer terms of imprisonment imposed on each of them.

In this case, each and both Defendants shall serve all their respective terms of imprisonment by serving the lengthiest term of imprisonment imposed which is 9 years.

Each and both Defendants have already served 3 months in custody since June 2005. This period of 3 months will be discounted from their respective terms of 9 years imprisonment.

Therefore, this means that Jack Nalau and Nelson Job must each serve a term of 8 years and 9 months imprisonment.

ORDER

1.	JACK NALAU and NELSON JOB shall serve a term of imprisonment of 8 years and 9 months.

2.	JACK NALAU and NELSON JOB shall serve their respective term of 8 years and 9 months imprisonment after they have completed a term of 1 year and 10 months imprisonment they are currently serving.

3.	The term of 8 years and 9 months imprisonment imposed on the above-named Defendants (Jack Nalau and Nelson Job) are to be served by the two (2) Defendants immediately after the completion of their present imprisonment sentence of 1 year and 10 months.

4.	14 days to appeal.

DATED at Port Vila this 31st day of August 2005

BY THE COURT

Vincent LUNABEK
Chief Justice