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Public Prosecutor v Daniel [2005] VUSC 15; Criminal Case 004 of 2005 (23 March 2005)

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

Criminal Case No. 04 of 2005.

PUBLIC PROSECUTOR

-v-

GEORGE DANIEL

Coram: Justice P. I. Treston

Mr. Timakata for Public Prosecutor
Mr. Sugden for Accused

Date of Sentence: 23rd March 2005

SENTENCE

You appear for sentence today on a charge of intentional assault. This occurred on 14 January 2005. You have pleaded guilty. The charge is a serious one and is provided for under Section 107 (c) of the Penal Code Act [CAP. 135] where the maximum penalty is 5 years imprisonment.

What occurred was that in the early hours of the morning of 14 January of this year, between 4 and 5am, you went to the victim Beatrice’s place. You and she had been in a relationship for some years although that had become strained and you were living apart at that time and she came out in the early hours of the morning having been called upon by you.

You had been drinking. You accept you were very intoxicated and after some words you threw a punch at her which not only threw her to the ground but also ruptured her right eye and she was taken to the hospital. The injuries were so serious that she has now lost the sight of her right eye and that will be something that will be a reminder in a very, very dramatic way of what happen to her for the rest of her life. She had had to go to New Zealand for treatment. The experts there were unable to save her sight and there may be some further medical intervention which will be required to stabilise what is left of the injury on a cosmetic basis but also on a medical basis a set out in the various medical reports which I have already seen. But the bottom line is she has permanently lost functional vision in her right eye.

The Public Prosecutor has submitted to me that a sentence of two years imprisonment should be imposed upon you. He refers to aggravating features, the actual use of violence, a vicious unprovoked attack, the actual degree of permanent harm caused to the victim and he has included the existence of premeditation. That is disputed by your counsel and I will refer to that aspect a little later.

Even though the Public Prosecutor has said that you are a first offender various cases have been referred to indicating that because of the nature and seriousness of the injuries and the other aggravating features that I have referred to, a sentence should be imposed in that way.

The Prosecutor also, having now had the opportunity of reviewing the submissions made by your counsel, addressed me in relation to a suspended sentence which is the course sought by your lawyer and initially said that a suspended sentence could only be employed in exceptional circumstances. Having reviewed the legislation, the Prosecutor now accepts that the matters set out in the actual Suspension of Sentences Act are the ones that must be considered but he submits that, because of the particular circumstances and the aggravating features which I have referred to, a suspended sentence would not be appropriate.

The victim is not in Court but the Prosecutor interviewed her yesterday to ascertain her views, which is appropriate, and has indicated that part of the reason that she has not come to Court is because she was afraid of you because of what happened and the consequence to her of what occurred in January of this year. She is also, it is said, concerned about compensation. She indicates that for this reasons and other reasons there was no prospect of reconciliation between the pair of you as a couple and has indicated that imprisonment might be appropriate should the Court think that were an appropriate course.

On your behalf your counsel gives me some insight as to you and your background. You are 28 years of age and, although you were born in Efate, your parents are from Tongoa. I am advised about your education at Port Vila SDA School, Saint Patrick College on Ambae, Malapoa College and INTV where you obtained diplomas of business and secretarial accounting. You went to Australia on a rotary exchange, took night courses and returned from Australia in March 1997. You were first of all employed at Iririki where the victim has been employed and you worked there until moving to Vila Agents Limited at the end of September 1999. That firm is still your employer. It is a freight forwarder, courier, custom clearance agent etc and has provided a reference supporting you, indicating that you are a highly skilled member of its staff. It says you are exceptionally reliable and honest and says you possess high morals consistent with your Christian upbringing. I have also had references from Chiefs in the Port Vila area of Seaside in the Tongoa part of that settlement. They confirm that you come from a Christian family and that you are a member of the Presbyterian church, and that you are a first offender and have been a faithful supporter of the church and are prepared, they say, on their understanding, to support not only the victim until she dies that is for the rest of her life and also your child. As I pointed out to your lawyer, that support of the mother of your child and your child is not a new thing. It is a matter which you have voluntarily undertaken prior to the incident and have endeavour to continue to do so since the incident so it is not a matter particularly in mitigation but is an ongoing responsibility that you have quite properly undertaken and will continue to undertake, according to the submissions, as you are able.

I am given some background about your family, and their religious background. You are the eldest of seven children, you have played sport, you are a first offender and your lawyer submits and stresses to me that this was an incident out of character for you which is regretted and was unpremeditated in that you were fuelled by alcohol and that personal deterrence is not necessary in your case.

I was given the background in some detail about your relationship with the victim and how over time clearly she found interests in another person which was difficult for you to accept. There were differences between you as to what might happen with your daughter and although there was access to her, there were differences between you concerning the fact that she was sent away for the Christmas period, which affected you as well.

On the day in question, I was given some indication about what occurred from your point of view. After work you went home and found it intolerable to be by yourself. You went to a bar with a friend and got very drunk and decided to go onto another bar. You don’t recall having directed a taxi to take you to the victim’s place but you ended up there. You have hazy recollections of what happened there but after a discussion you remember that the victim was on the ground, although you did not specifically remember striking her.

Significantly, as has now become apparent, from a detailed review of the evidence in relation to the aspect of premeditation, you had said to a witness at the time, when the witness was attending to the victim when she was on the ground and before she was taken to the hospital, words to the effect for that person to leave the victim alone because you would do a proper assault on her. That gives some indication as to the level of your animus in relation to the actual incident and the assault.

Your lawyer goes on to talk about the fact that you are extremely distressed and contrite about what happened, you have given up alcohol and it is submitted to me by way of mitigation that you are a young man scarcely out of the category of offenders that has been referred to as youthful offenders. I have got to say that at your age of 28, I find that submission perhaps of limited assistance because you are hardly a youthful offender at 28 years of age.

I agree that there was no weapon used here and that the blow landed in an unfortunate place and there was dispute taken by your counsel as to this as proof of premeditation. I have got to say that, despite the view of the matter that you expressed in the quotation that I have referred to a moment ago, there is no particular indication that the actual blow or the assault was premeditated although clearly you ended up at the victim’s place in the early hours of the morning and a discussion took place and the incident occurred.

Clearly, it is submitted to me by your counsel, you were under stress, you are genuinely contrite, you have stopped drinking alcohol and you have previously been of exemplary character.

It is submitted to me that the Court should deal with you in one of three ways either by something short of imprisonment or a short term of imprisonment and if that were imposed that any term of imprisonment should be suspended and it is submitted to me by your counsel that in relation to whether or not a suspended sentence should be imposed or taken advantage of the Court should have regard to the rehabilitative aspects of the case.

It is submitted to me that should you be sent to jail, you would come into contact with hardened criminals and a consequence of imprisonment would be that your social and employment prospects would be diminished and consequently any ability you would have to continue to support the victim and your child would also be interfered with and that would be contrary to the interests of society.

When I consider the question of sentence, I must look at the maximum term of imprisonment that can be imposed which is five years. I must hold you accountable for the harm, and significant harm it is, done to the victim not only physically but also psychologically and effectively it is not only the victim that you have wronged but also the community and your particular community from which you have some support. I must hold you responsible for your actions and of course I must not overlook the victim’s interests and views. I must take into account were it appropriate any custom settlement under section 119 of the Criminal Procedure Code CAP. 136 and although there has been nothing done in that regard particularly, you say that because of the restrictions of bail preventing contact with the victim I also must take into account that you were prepared to undertake that, were you able to do so. I also bear in mind your continued financial support of the victim and your child although as I have already said that was already a responsibility both before and after the incident and the fact that in early January, you went to see the victim to say sorry and gave her VT5, 000 and some food as a symbol of your wish to make amends. But there had been no actual custom settlement under the legislation.

I must not only denounce your conduct but also deter you and other like-minded offenders from similar activities. I must protect the victim and also community at large from this sort of violent behaviour and I re-enforce and recall the comments made by the then Chief Justice in the case of Public Prosecutor v Willie Tataki Criminal Case of 1994, where the then Chief Justice said:-

“It must be extremely rare, if ever, that such a serious assault on a woman by a man even her husband does not attract an immediate term of imprisonment. Any Court taking a different course would be acting irresponsibly and would be failing in its duty to protect the public and particularly the women of this country.”

So I must bear that philosophy of these Courts in mind when I consider the appropriate sentence to be imposed. I am of the view that your offending and the nature of the injuries are such that the sentence must be appropriate and must be significant enough to recognize what has happened but of course I will impose the least restrictive outcome which is appropriate. There have been significant physical effects on the victim as I have said more than once and the bottom line of course is that she lost the sight of one of her eyes.

In sentencing generally, there must be a balance between aggravating and mitigating factors. I identify the aggravating factors of this case as follows. First, there was the actual use of violence; second, there was a particularly serious outcome of the victim with the injuries that were caused. Third the attack was unprovoked fourth you said at the time that you wanted to assault her further, and I take those factors into the mix when I consider aggravating features.

When I consider mitigating features, of course I take into account your plea of guilty and an appropriate recognition of that will be made in due course. I must take into account any remorse which you have expressed and you have expressed that in no uncertain terms and I must take into account by way of mitigation your previous good character. You have no other convictions and you have not appeared in the Court before. It is said that the matter is out of character.

I must not, as a matter of principle, take into account by way of mitigation, the fact that you were at the relevant time affected by the voluntary consumption of alcohol. There could be a suggestion in your case that the voluntary consumption of alcohol was a result of your built up frustrations and your calling around to see the victim as you did although not particularly in your memory had elements of retribution for what the victim had done to you personally with regard to her relationship with another man and in sending your daughter away. But I have got to say that I carefully balance the aggravating features against the mitigating ones that I have referred to.

When I look at this case in general terms, it is difficult for the Court to separate the catastrophic and life changing injury to the victim as a result of your assault, from the assault itself. I consider the provision in relation to suspension of sentences which is found in CAP. 67 and which commenced on 24 January 1972. I note under section 1 (a) of the legislation it is provided as follows: -

“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 conditions:-

(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, or regulation, rule or order within a period which shall be fixed by the court, not exceeding 3 years....”

So what must be looked at by the Court in relation to a consideration of suspension is this. The Court must consider the circumstances and in particular the nature of the crime and the character of the offender. The circumstances I have set out and referred to more than once and as I say it is impossible in my view, to separate the consequences of your act from the offence itself. The nature of the crime is serious. Although there may have been only one blow the dire consequences as a result of that assault in your drunken state were significant. You can of course call into account your own character. You have endeavoured already to rehabilitate yourself by giving up alcohol to prevent a recurrence of this but the other matters that I have considered in my view fall into insignificant when one looks at the circumstances and the nature of this particular crime.

This was an unprovoked vicious blow in the early hours of the morning, fuelled no doubt by your alcohol and the voluntary consumption of that but the circumstances of this case, bearing in mind the statutory criteria, in my view preclude a suspension of any sentence of imprisonment that might be imposed. And I say to you this, Mr. Daniel, it is appropriate in my view to impose a sentence of imprisonment in your particular case. I agree that the cases referred to by the Prosecutor involved in the main the use of weapons. That was not the case here and therefore it is my view that the appropriate sentence should reflect that fact and I bear in mind, of course, the maximum sentence which can be imposed.

Having considered all the factors and the other matters that I have already referred to, I consider that the appropriate sentence in your case for this assault in the circumstances in which they occurred is 2 years and 3 months imprisonment. I immediately give you credit for your plea of guilty at an early stage. Traditionally in the context of criminal offending and as set out by the Chief Justice in the Public Prosecutor v August [2000] VUSC 73 case which dealt with rape, the appropriate credit for a plea of guilty is a one-third reduction of the appropriate sentence. I immediately give you that reduction and reduce the sentence accordingly to 18 months imprisonment.

I give you credit for the compensation which you have already paid and as I say I do not consider that continuing to pay support for your partner and your child is a reparation aspect. That was a previous and is a continuing responsibility but some compensation has been paid and you have expressed a willingness when and as you are able to pay further compensation. You were willing to take part in a custom settlement. For all those factors in relation to compensation I further reduce the sentence from 18 months imprisonment to 16 months imprisonment.

There is no question in your circumstances of any allowance being made for time in custody because as I understand it, you have never been in custody.

So the sentence I today impose in relation to this matter is 16 months imprisonment.

You have 14 days in which to appeal that sentence if you are not satisfied with it.

Dated AT PORT VILA, this 23^rd day of March 2005

BY THE COURT

P. I. TRESTON
Judge