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Public Prosecutor v Servet [2014] VUSC 214; CR 181 of 2014 (19 December 2014)

IN THE SUPREME COURT OF THE REPUBLIC OF VANUATU
Criminal Case No. 181 of 2014
(Criminal Jurisdiction)

PUBLIC PROSECUTOR

VS

PETER SERVET
SKIP SER
MICHAEL TOTO
JACKY JOSEPH
WILLIAM KALRETH
COLLINE FRED
HOSEA TOTO
USAH LIGO
ROY SER
JOHN TOTO
RENE SAMSON
WAR TOTO
STEVE PETER
TOTO SUL
AMSON SAM
PAUL SAMON
KALVET FRED
WINSTONE IAVRO
STEVEN COLIN
JACKSON IAVRO
JIM BERRY
ALICK TOTO
YANDEE COLIN
TOTO JEAN
BRIGHTLY SAM
CHARLES TOTO
JUNIOR TITUS
KENNY NISA
BRIAN ROTUL
NAISER SAMSON

Coram: Justice Stephen Harrop

Date: 19 December 2014

Counsel: Ken Massing for Public Prosecutor
Jane Tari for the Defendants

SENTENCE

1. This is the sentencing of 29 defendantswho have pleaded guilty to charges of unlawful assembly and theft arising from an unsavoury incident at Velit Bay in East Santo on Sunday the 21st September 2014.
   
2. These are serious charges: unlawful assembly carries 3 years imprisonment and theft 12 years imprisonment. Two defendants, Michael Toto and Charles Toto, also face charges of intentional assault; the two victims of that offending fortunately did not received anything more than temporary injuries and as a result the maximum penalty attached to the assault charges is 1 year imprisonment.
   
3. All of the defendants pleaded guilty at the first opportunity and of course are entitled to the maximum 1/3 discount on sentence for doing so.There have been three separate reconciliation ceremonies. Of the two victims it is really Mr. Griffin who is primary victim, both of the assault and in relation to the property. He has written a helpful letter to the Court and he is present today. He accepts what has occurred at the customary reconciliation ceremonies as appropriate recompense and response from the defendants. His company Western Pacific Cattle Company Limited operates the Velit Bay Plantation. He believes that all of these defendants were misled and then led by an ex pat Eilon Mass to commit these offences; Mr. Griffin says that in an indirect way they became victims like him.
   
4. He emphasises, along with Pastor Tele Toto, that these defendants have attempted make good the wrongs that occurred to him and to the community and he suggests that a lenient sentence is appropriate and that community work should be part of the sentence.
   
5. I want to mention the position of Mr. Mass before I go any further because it needs to be recorded and I emphasise that he has not yet pleaded to the charges he faces of inciting unlawful assembly and inciting theft. So he is currently not convicted of anything and may never be if he pleads not guilty and he is found not guilty. So anything I am going to say today is on the basis of the beliefs and perceptions of the defendants and Mr. Griffin, but it is in no way any sort of finding against Mr. Mass. He is entitled to his day in Court and will pleading to his charges in February.
   
6. I want to record before I go further my gratitude to Mr. Massing and Ms Tari for their submissions, but particularly to Ms Tari because she has had to consult 29 clients over a relatively short period. She has managed tocondense her submissions into a comprehensible and in the circumstances relatively brief document. I greatly appreciate the quality of her submissions in the circumstances in which she has to prepare them.
   
7. I also want to acknowledge the outstanding efforts of the local correctional services office because they have produced 29 pre-sentence reports and while these are brief documents they contain very helpful personal details about each of the defendants and refer to their response the offending and what is recommended by a way of a sentence. It is with no disrespect to those reports that, of necessity in a sentencing of this size, I am going to treat the defendants in groups by way of outcome.
   
8. I also want to acknowledge not only the letter from Mr. Griffin which I have already mentioned but a helpful letter from some other ex pat residents on a nearby island; here I am referring to Anthony Welch andhis wife Helen .I found their comments very helpful to provide context. I will mention what they say now before I discuss the facts of the case. The Welches have a very close relationship with Kole Village from where all of these defendants come and they have come to regard the villagers as good friends.They emphasise that these are good people who have been a very supportive whenever they have needed help. They say that they were not directly involved the issues betweenVelit Bay and Kole Village but they believe the incident arose froma very convincing argument being put to the villagers by another ex pat, who I take to be Mr Mass.
   
9. The Welches say they do not condone or excuse in anyway the behaviour but they do believe that the villagers entered into a situation believing they were doing the right thing because of Mr. Mass's advice. They say it simply got out of hand and that thios conduct was totally out of character for these defendants.
   
10. They also said that subsequent to these events Kole Village has undergone a deep breath???but is now recovering from with the assistance from the Velit Bay people and also themselves. There is genuine remorse and they believe the likelihood of a recurrence isextremely low, so they suggest that non-custodial sentences are appropriate.
    
11. That is very helpful information to receive from people who were close enough to know the people involved and at least indirectly who know what happened but who were not themselves directly involved. They do not appear to have any particular reason to say something which is not correct.
    
12. So I turn to the essential facts of what happened. The 29 defendants met as a group at Kole Village after Church on Sunday the 21st of September and as a result of advice given to them by Mr. Mass they believed that they were entitled to go to Velit Bay to recover an Oil Mill Machine owned by Mr Mass and some other property.
    
13. So they were went as a group and removed a substantial amount of property; there is no valueascribedto this but there is a list of property attached to the Public Prosecutor's submissions. In the course of the incident two of the defendants, Michael Toto and Charles Toto, assaulted Mr. Griffin and another male victim who is no longer living here. But on their way out of Velit Bay the Police were waiting at the gate having been alerted. They seized all of the items that were being carried and so on the face of this there is no loss to the owners of the property. I should add that Mr Massing has said today that Mr Griffin advises there were some personal items missing but ultimately I am not in a position to make an order for compensation in respect of that property and I think the custom ceremony must be treated as having redressed that wrong as well as the other events.
    
14. It has to be said though that had the Police not been at the entrance of Velit Bay the items would surely have been taken further and dispersed so that the prospects of recovery would surely have been much worse.
    
15. In assessing the appropriate sentence it is obviously essential to try to ascertain what was the true level of criminality. Here it seems to me that even if it is true that Mr Mass is the main reason, or perhaps the only reason, why this event happened it would not have happened if each of you had independently made the decision that this was not something in which you should become involved.
    
16. When there is a group of people which decides to take some action, it takes real courage for an individual to stand up and say to the rest of the group we should not being doing this, we should not be getting involved in Mr Mass's business. Somebody should have said well if he has a Court Orders or some other document that authorises entryonto the property, well let the authorities enforced that order, let the Sheriff or the Police help Mr Mass to ensure that what he's entitled to.
    
17. You should not have become involved in his business. Effectively you took the law into your own hands. You may well have believedthat you were acting properly but you were carrying out actions which were contrary to the law not in support of it.
    
18. I can accept especially from those of you who are in the younger category, under 25 or so, that it would have been difficult for you to refuse your elders who had decided that this was something that should happen. Peer pressure, especially in the village where you have leaders who make decisions about this kind of thing, is a very powerful thing .I can accept that you thought on some level that you were acting in a just cause in which you are entitled to do what you were doing.
    
19. It is the responsibility of a chief or a leader to stand up in the face of pressure and to encourage others do the right thing when it is clear that the wrong thing is about to happen. Lower ranked individuals also have responsibility not to "go with the flow" if it is the wrong thing to do.It takes courage to do that and not one of you took that courageous step; you all tookthe easy option of following along with everybody else.
    
20. The leaders of the village, and I understand that chief Peter Servet is the main leader involved, must take moral responsibility for what happened because there was a choice and while I am not going to sentence the leaders to any different sentence, I think morally they have to accept that responsibility lies significantly with them.
    
21. If the chief had said we are not going to do this, then it would have happened. Being a chief is an important position, you have a lot of benefits, you have lot of power, you have a lot of privilege, but also comes with responsibility to show leadership from time to time to sway the masses from something that you know is wrong.
    
22. But I emphasise, it is not all the chief's fault because each of you individually made your own decisions to go and you're old enough to do that, especially those who are over 20. You are old enough to say I agree or I disagree, I am going to make my own decision.
    
23. There is a suggestion here that some of you were not just motivated by what Mr Mass may have said but rather because there was a concern about the way that in earlier incident had impacted on some other villages who were fired upon with rifles apparently back in July.Even Ms Tari acknowledges this that when the opportunity arose to do something at Velit Bay you were quite pleased to have the opportunity to do that. So it's not just about Mr Mass it seems to me.
    
24. What I you to think about for a moment what it must been like for Mr Griffin and other people at Velit Bay to see at least the 29 (and I understand there were other men from other villages who have not been charged so as maybe as many of 50 people) coming down the hill to impose their will on the few people who were there.
    
25. How would each of you feel if 30 or 50 people came toward you saying well somebody's told me that you've got something of theirs and we have come to get it. The inference is with that many people that there is going to be violence if you don't do what you are told. So it is easy for us to sit here now and say the assaults were relatively minor in terms of injuries caused and duration of effects, they were carried out by couple of people who were drunk. However,of course, the victims did not know at the time what was happening and may well have thoughtthere was going to be a much more substantial attack than actually eventuated.
    
26. So mentally, this was very frightening for the victims.It is pleasing to say that with neighbours such as yourselves from Kole Village and the people at Velit Bay have undergone a reconciliation ceremony that allows you to move on and to have a proper respect for each other from this point forward. That is very important, especially because you will need to continue to have dealings with each other, and it is in the end much more important than anything the Court does at sentencing.
    
27. There was violence from two of you. I accept that all the others went not expecting that to occur but it does add to the picture that this was no friendly visit and that if there was resistance by the victims of property being removed there would be physical trouble. They must have been fearful, as I have said.
    
28. It is against the background rather disappointing to notein almost all of the pre-sentence reports that you blame Mr Mass and do not appear to accept much if any personal responsibility for your own decisions to join in.
    
29. It maybe that Mr Mass is at fault and that is something that is yet to be determined but as I have said you each individually made decisions for which you have to take responsibility. You are all apparently churchgoing and Christian people: what happened to treating others as you would like to be treated??
    
30. I do acknowledge that all of you clearly have a genuine feeling that you were deceived by Mr Mass and that there is, although this is yet to be established in his case, in your mind at least a clear basis for that perception.
    
31. Having said all of those things I need to remind myself that I am not here to sentence you on the quality of your character, I am here to sentence you based on the extent of your true criminality and on whatyou actually did on the day and your respective roles in the matter.
    
32. Overall, I accept Ms Tari's submission that I have to proceed cautiously because there is no clear delineation of particular steps taken or particular roles so I am going to proceed on the basis that you all went there thinking you were doing something that was acceptable and in accordance with the law rather than against it, but you realised when the Police turned up that you had been misled.
    
33. Clearly that two who carried out the assaults which were to the headand body of the victims need to receive an additional punishment from the others. I also think there is an argument which both counsel have put forward that younger members of the group should be treated more leniently than older ones. I accept that as a matter of principle.
    
34. I have already touched on many of the points that have been made in the submissions and indeed in the pre-sentence reports and to keep this sentencing reasonably short I do not propose to go through each of the defendants and their personal circumstances. Generally speaking you were all previously of good character with no previous convictions, you do valuable things in your communities. When you commit an offence against the community you are all entitled to have weighedin thescales the thing you have done for your community.
    
35. There are a couple of youwho have previous convictions but none of those has any bearing on this case because they relate to different types of offending, so I am going to treat you all as effectively first time offenders of good character prior to this incident. That adds weight to your protestations that you were deceived. You are not the sort of people who normally do this sort of thing.
    
36. I accept that the general approach to sentencing which is put forward by Ms Tari and effectively also by Mr Massing. Both of them propose a suspended sentence of imprisonment for at least the older people involved coupled with community work. Both suggest the older defendants need to receive more substantial sentences than younger ones, Ms Tari suggests that might through the line between these groups at 25 years of age and Mr Massing suggestsit might be 21. Inevitably this is rather arbitrary but I really have little choice in such a large sentencing but to take a somewhat arbitrary approach so I am going to take the 25 birthday as the as line between the two groups.
    
37. As I have said the two who were involved in the assaults must also receive a distinct uplift compare with the others but I accept as does Mr Griffin at least these were not premeditated assaults; they occurred on the spur of the moment and appear to have been carried out by the people who were somewhat intoxicated; that of course is no excuse but it does provide some explanation.
    
38. Because the Public Prosecutor has not, understandably perhaps, been able to identify in any detail the particular roles that were carried out by each defendant and what items were taken by what defendant, I accept Ms Tari submission that I have got to take a fairly cautious and global view in ascribing criminality to each particular defendant.
    
39. So I propose to impose community work coupled with suspended sentences of imprisonment in most cases and to differentiate between and younger and older groups. However in a few instances I have decided to discharge without conviction some of the younger ones. I do not propose to go through the usual exercise that we follow on sentencing of attempting to set a starting point and then reducing thaton account of various mitigating factors, ending up with the sentence.
    
40. The reason that I am not going to do that is that is quite difficult to assess an appropriate starting point when the true level of criminality is somewhat debatable here given the possible motivation involved. I have considered the other cases referred to by counsel but it seems to me this is a rather special case and I do not find the other cases especially helpful. What I can assure each of you is that I have taken into account the following various mitigating factors. First, as already mentioned your guilty pleas at the earliest opportunity. Second, the three custom ceremonies which are very important as I have already mentioned between neighbours who have to live with each other in the future. Third, the attitude of Mr Griffin is displayed in his letter and the comments made by Mr and Mrs Welch. Fourth, your remorse: you all appear to be genuinely remorseful and that is consistent with your involvement and the custom ceremony. Had you not been genuine in your remorse I am sure Mr Griffin with not have made the comments in your favour that he has. And finally, the previous good character in virtually every case, certainly the absence of any relevant convictions in every case.
    
41. In addition, in relation to the offencesthemselves I accept there was a genuine if misguided belief that you were entitled to do what you were doing and that there was also at play a group mentality giving rise to a form of peer pressure. All of those things reduce the true level of criminality.
    
42. On that basis as to each of the defendants who are 25 or over, leaving aside Michael and Charles Toto (and Hosea Toto- see paragraph 45 below), I have come to the view that a prison sentence of 12 months,wholly suspended for 18 months, together with a sentence of 100 hours of community work,imposed concurrently on both charges, is appropriate.
    
43. For the Totos it will be the same suspended sentence but 150 hours community work.
    
44. For those 24 or under, with the exception of five I am going to discharge without conviction, there would be a 6 months sentence of imprisonment wholly suspended for 6 months and 50 hours community work.
    
45. Before I go further, I note here that I will treat Hosea Toto differently from those who are in the older age bracket: he is 48, but I am going to treat them as if he were 24 years of age and impose the lesser sentence on him. There are two reasons for this, although there is no expert evidence before me there are indications that he has some degree of mental impairment. I also think he needs to be given credit because he is the only one who immediately acknowledged this involvement to the Police. Others of course are not to be penalised for saying nothing and for reserving their rights to speak in Court but he deserves credit for being upfront immediately with the Police. So I will treat him as if he were in the under - 25 bracket.
    
46. I propose to discharge five young men without conviction. These are: Brian Rotul, whose 19 and is still at school, Wilson Iavro who is 19 and a student at USP,he wishes to be a lawyer, Roy Ser who is 17 and a student at Rural Training Centre, Usa Ligo who at 16 is the youngest of all and is a student considering a career as teacher or a police officer and Jacky Joseph who is 22 and who has studied accounting at USP here and is going to Vila next year to study .
    
47. Now it may seem unfair to others who are in the under-25 age group who are receiving a suspended present sentence and community work that there others in your age group who are been discharged without conviction. But the reality is that for young people who are undertaking higher education towards employment where their character will be important, there are very likely to be adverse consequences if a conviction is entered, by comparison with those who do not propose to work in high level employment. The latter are not likely to suffer any consequences from a conviction if they are simply working in physical labour. By contrast, somebody who is studying to be in a profession could be prevented from that work. Given their age it is inappropriate to prevent them pursuing those careers before they have begun. So while I understand thatthe other young people might see it as special treatment and especially that it seems unfair that the people who have that benefit of higher education somehow get treated more leniently, the reality is that the consequences for them of a conviction are likely to be far more serious and long-lasting than for others.
    
48. So in summary: the 9 defendants who are sentenced to 12 months imprisonment suspended for 12 months and 100 hours community work are: Peter Servet, Skip Ser, William Kalreth, Colin Fred, Rene Samsen, Paul Samsen, Steven Colin, Jackson Iavro and Alick Toto.
    
49. Michael Toto and Charles Toto are sentenced to 12 months imprisonment suspended for 12 months and 150 hours community work.
    
50. Then there is a group of under-25 year olds who are not being discharged without conviction; there are 13 of them, including Hosea Toto. The other 12 are: John Toto who is 21, War Toto who is 19, Steve Peter who is 22, Toto Sul who is 20, Amson Sam who is 22, Kalvet Fred who is 23, Jim Berry who is19, Yankee Colin who is 19, Toto Jean who is 19, Brightly Sam who is 20, Junior Toto who is 24 and Kenny Nisa who is 21.
    
51. Then there are the remaining 5 who are discharged without conviction: Brian Rotul, Wilson Iavro, Roy Ser, Usa Ligo and Jacky Joseph.
    
52. Finally, because Mr Griffin is present, I want to add something about community work. Mr Griffin suggested in his letter that ideally he would like community work to be carried out at his property and for his benefit or that of his company. I understand why he might think that is appropriate but it is not acceptable under the law.
    
53. The Court has sentencing these defendants for their offence against the community and the Penal Code provides some particular ways in which community work maybe served; I am referring here to Section 58 T (1). The type of work that an offender maybe required to perform for the purposes of the community work is: (a) work at or for any hospital or church or for any charitable, educational, cultural or recreational institutional organisation; or (b) at or for any other institution or organisation for old, infirm or disabled persons or at the home of any old, infirm or disabled person or (c) on any land which is under the control or direction of the State, a village council or any public body.
    
54. So Mr Griffin you can see from that that the purposes for community benefit for helping those who are less fortunate in the community. It is not a sentence designed to provide some form of compensation for a victim.
    
55. Matters between a victim and the defendants may be resolved by orders for compensation if they are appropriate, provided the defendants can afford to pay anything, and also importantly in Vanuatu by customary reconciliation ceremonies such as have occurred here on three occasions.
    
56. I hope everybody understands the sentence they are receiving. The Court will need to prepare typed orders relating to the sentences of suspended sentences of imprisonment and community work and they need to be handed to you so you are formerly advised of them. If you were living in Luganville we would ask you to come back to the Court later and pick them up but because I understand you mostly live quite some distance away up at Kole village, I ask you to wait in the Court compound until you receive the documents.
    

POSTSCRIPT

57. Each of you has 14 days to appeal against your sentence if you are dissatisfied with it.I omitted to mention this in open Court as I was required to do. Unfortunately it has not been possible to issue the typed version of these sentencing remarks until 19 February 2015, well beyond the 14-day period. In the circumstances I expect that the Court of Appeal would, under Section 201 (6) of the Criminal Procedure Code, be willing to extent time to the necessary extent if there was a belated appeal.
    
58. I also omitted in open Court to explain to the defendants the effect of suspension of the present sentence, though I expect Ms Tari will have done so. Equally with the appeal period however, it is my responsibility to ensure that this is explained and that the defendants understand. The effect of suspension of the present sentences is that if the defendants commit any offence within the period of suspension then they will be required to be served that sentence together with any sentence imposed for the further offending.
    
59. When delivering sentence I believed based on some information on the file (Ms Tari's submissions) that Steven Colin was aged 25 as at the date of the offence and I therefore sentenced him to the more serious penalties namely 12 months imprisonment suspended for 12 months and 100 hours community work. Shortly afterwards, I found out that he was only 24 on the date of the offence and therefore I signed an order at the lower level namely 6 months imprisonment suspended for 6 months and 50 hours community work. Since this was a reduction on the penalty he believed he received,I saw no need to call him back before the Court for this to be confirmed.
    

BY THE COURT

STEPHEN HARROP
Judge