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Jackson v Public Prosecutor [2011] VUCA 13; Criminal Appeal 07 of 2010 (8 April 2011)

IN THE COURT OF APPEAL OF THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

CRIMINAL APEPAL CASE NO.07 OF 2010

BETWEEN:

ALFRED MATAHOSO JACKSON, OBED HARRY, LEO HARRY, DAMSAI JACKSON, JEU MOLI, TOA TOKO, TATAVIS JARIWARI AND DING BANI
Appellants

AND:

PUBLIC PROSECUTOR
Respondent

CRIMINAL APPEAL CASE No.08 OF 2010

BETWEEN:

TATAVIS JARA WARI
Appellant

AND:

PUBLIC PROSECUTOR
Respondent

Coram: Hon. Chief Justice Lunabek
Hon. Justice Mansfield
Hon. Justice Asher
Hon. Justice Fatiaki
Hon. Justice Spear

Counsel: Mr S. Stephens for the Appellants
Mr T. Karae for the Respondent

Date of hearing: 01st April 2011
Date of judgment: 08th April 2011

JUDGMENT

1. These appeals arise out of a rampage of violence to property on 7th December 2008 on the island of Malo. The appellants were all charged variously with the offences of arson and malicious damage. All but one of the appellants, Mr Jeu Moli, were sentenced to terms of imprisonment. During the course of the hearing Mr Moli's counsel (Mr Stephens), who acted for all appellants, withdrew Mr Moli's appeal.
   
2. Mr Jarawari did not appear for his sentence on the set day of 26 October 2010, and the others were sentenced on that day without him. He was sentenced later on 22nd December 2010.
   
3. In essence there were two groups of defendants. The more serious group was those whom we will call the Arson Defendants. Their leader was Alfred Matahoso Jackson (Mr Matahoso) who pleaded guilty to 5 counts of arson. The others were Obed Harry who pleaded guilty to 6 counts of arson and 2 counts of complicity to commit arson, and Tatavis Jara Wari who pleaded guilty to 5 counts of arson, and 2 counts of complicity to commit arson.
   
4. The other group of defendants whom we will call the Malicious Damage Defendants involved Obed Harry, Leo Harry, Damsai Jackson, Jeu Moli, Mr Toa Toko and Ding Bani. These defendants all pleaded guilty to five charges of malicious damage to property.
   
5. Justice Dawson sentenced the defendants as follows:
   
   • Mr Matahoso: – starting point of 4 years imprisonment, reduced to 3 years.
     
   • Mr Obed Harry: – 2 and half years of imprisonment.
     
   • Mr Jara Wari: – 2 years imprisonment.
     
   • Mr Leo Harry: – 9 months imprisonment.
     
   • Mr Damson Jackson: – 9 months imprisonment.
     
   • Mr Jeu Moli: – 6 months imprisonment, suspended for 2 years.
     
   • Mr Tpa Toko: – 9 months imprisonment.
     
   • Mr Ding Bani: – 9 months imprisonment.
     

The facts

6. The prosecution summary of facts appears to have been accepted by Dawson J without challenge from Mr Stephens as counsel for all the defendants.
   
7. The events of 7th December 2008 appear to have had their genesis in a sense of grievance that the defendants developed against various occupants of dwellings in the area in which they lived. They were newcomers and perceived as interlopers and trouble makers.
   
8. Messrs Jackson, Obed Harry and Jara Wari, the arson defendants, approached various dwellings in the early hours of the morning when the victims were sleeping. On the first occasion described in the prosecutor's summary, a complainant was asleep (as were his wife and three children), when persons approached his house and woke him up. He was called upon to come out of the house as those outside were preparing to set fire to it. He rushed out of his house with his family and saw that the three arson defendants, Messrs Matahoso, Obed Harry and Jara Wari were setting fire to the dwelling in which they had been sleeping. Mr Jara Wari was pouring an inflammable liquid around the kitchen. The arson defendants then proceeded to move to different places and burn down four more houses.
   
9. It seems that these dwellings were not substantial, and were in the nature of sleeping houses and kitchens. All the victims in one way or another became aware of the arson before the houses started to burn seriously and all were able to escape.
   
10. Nevertheless, the report of the damage indicates that considerable losses were suffered by the victims. The first house had cost 25,000VT to build and contained personal property valued at 252,900VT. There were items destroyed in another sleeping house worth 200,000VT. In another sleeping house there was personal property with 12,000VT, and cooking equipment worth 12,000VT, together with mobile phones worth a total of 35,000VT. In another property, there was personal property worth 30,000VT. So the total damage amounted to 500,000VT. All the victims' lost items of personal importance.
    
11. In relation to the malicious property charges, there was deliberate damage to various gardens belonging to the victims. The defendants destroyed gardens included two plantings of marrow, three plantings of soft yams, one hectare of green kava, about 300 coconut trees, 2 plantings of pineapples, and one planting of taro. Another separate attack involved the destruction of two plantings of marrow, one planting of soft yams and one garden of kava. On another occasion they destroyed banana plants, taro, coconut plants and fruit trees. At one property they killed 6 pigs and one dog. They later killed another victim's pigs, chicken and a horse. In another victim's garden, they destroyed three plantings of yam and two big plantings of kava.
    

Approach to this appeal

12. The principles to be applied by an appellate Court to an appeal against sentence by a defendant are clear. The Court will not interfere unless the sentence is manifestly excessive. This may be because the judge has acted on the wrong principle or has clearly overlooked, misstated or misunderstood a salient feature of the evidence. It may be because the sentence is so clearly wrong that it could not have been imposed without a miscarriage in the exercise of the discretion. For examples, see Public Prosecutor v. Gideon [2002] VUCA 7, following Skinner v. The King (1913) 16 CLR 336, 340.
    
13. The Courts will consider a variety of governing principles, including the need to protect the community from the defendants, and to deter the defendants from further offending. The damage done by the victims must be recognized. Further, in accordance with section 37 of the Penal Code Act, the desirability of keeping offenders in the community so far as practicable and consistent with the safety of the community must also be recognized.
    

Submissions for the appellants

14. Mr Stephens presented the submissions jointly for all defendants, without distinguishing between each of them, and he did not suggest what the appropriate penalties should be. Although he did not, in the end, proceed with all the points on appeal, we set them out in a short summary.
    

(a) The sentencing judge placed too much weight on the prosecution evidence, and the appellants pleaded guilty on the misconception that they would receive some leniency.

(b) Insufficient weight was placed on the entry of the guilty plea. Mr Stephens also referred to "provocation" on the part of the victims, and alleged that the complainants had come to Court "with dirty hands". He referred to an earlier assault on Mr Jara Wari by one of the defendants. He also mentioned insufficient weight being placed on the guilty pleas,

(c) The sentences did not reflect the nature of the offences. The buildings burned down were not of particular value.

(d) The sentences were manifestly excessive in comparison to other cases of arson.

First Ground of appeal – too much weight on prosecution evidence

15. Initially in a submission to us, Mr Stephens suggested the Judge had failed to read material on the prosecution file including the statements of some of the defendants. However, it transpired during the course of the submissions, and after questioning from the Court, that the Judge had worked from the summary of facts provided by the prosecution without complaint on the part of Mr Stephens. It was pointed out to Mr Stephens that, if a defendant wishes to contest a summary of facts, this must be made clear so that the points of difference can be resolved in a pre-sentence hearing involving evidence. This was not done in this case. There was nothing on the file to indicate any contest as to the facts.
    
16. When these factors were drawn to Mr Stephens' attention, he did not pursue any specific complainants about the judge's factual assumptions. We have seen nothing to indicate any error by the judge under this ground.
    

Second ground of appeal – Provocation and insufficient weight on guilty plea

17. In relation to the guilty pleas, the judge did apply discount which appears to have been approximately 25%. For pleas that were entered, as these were, just prior to the start of the trial, the discount was generous but it did allow as well for good character. A discount of as low as 10% to15% for the guilty pleas alone would have been realistic. There can be no suggestion therefore that the judge had applied a discount that was too low.
    
18. The suggestion for the defendants was that they were carrying out their attacks in response to wrongs that they had suffered at the hands of the victims and so there was an element of revenge or pay-back in their behaviour. The judge's rejection of this was entirely appropriate in the circumstances. The alleged wrong doing had not taken place in the hours prior to the rampage and could not be seen as a mitigating factor. We agree with Dawson J that, in the circumstances, it was entirely unacceptable for the defendants to take the law into their own hands and inflict such violence on persons and property in the way that they did.
    
19. Mr Stephens did not proceed with the suggestion that the judge had not given the defendants the leniency which he had earlier indicated he would give prior to the entering of the pleas of guilty. There was nothing to support such an allegation.
    

Third ground of appeal – the value of the structures

20. This area of complaint was not pursued by Mr Stephens after some exchanges with the bench during submissions. We record that Mr Stephens was correct to abandon this complaint. While the buildings that burned down were not substantial houses, they were nevertheless places where people were cooking and sleeping and keeping their personal effects. These owners do not appear to have been well off, and their loss would have had a severe impact on their daily lives. The damage to the gardens and resulting loss of food and profit from produce and livestock would also have impacted severely on the victims. The wanton killings of the livestock would have been most shocking.
    

Fourth ground of Appeal – Sentences manifestly excessive

21. Under this heading Mr Stephens focused on parity issues. We propose looking at the sentencing process as a whole before considering parity.
    
22. The maximum sentence for arson is 10 years imprisonment. The maximum sentence for malicious damage to property is 1 year's imprisonment.
    

The Arson Defendants

23. The learned judge chose a starting point of 3 years imprisonment. He noted various aggravating factors, including the destruction of 11 houses, and the carriage of weapons including knives, axes and a bow and arrow. He noted the personal nature of the losses of the victims, and that this was a deliberate course of action "... designed to drive the victims out and away from where they lived."
    
24. We agree with the judge that those were all aggravating factors warranting an uplift in the starting point. We consider that the ultimate starting point for Mr Matahoso Jackson of four years imprisonment was right at the bottom of the available range. Given the number of charges, a starting point two or three years higher could have been appropriate, particularly considering that Mr Matahoso Jackson was over 59 and the leader of the offenders.
    
25. The judge considered the mitigating factors. The primary mitigating factor was the guilty plea but, in addition, there was the fact that all the defendants appear to have been first offenders of good character. There was no significant discount available for remorse save in the case of Mr Moli who was the only defendant who appeared to be truly sorry and who did receive a suspended sentence. In those circumstances, the apparent allowance for the guilty pleas and good character of 25% was entirely fair.
    
26. Thus, the end sentence for the most serious offender. Mr Matahoso Jackson of three years imprisonment was very lenient. It could have been at least 2 years more.
    
27. The sentences of the other two arson defendants, Mr Obed Harry and Mr Jara Wari at two and a half years and two years respectively, were also generous. On a parity basis, the differential could have been greater between their sentences and that of Mr Matahoso Jackson, given his role as the older man and their leader. The judge, in deciding the differential, may have taken into account Mr Harry Matahoso's long history of good character. We are not persuaded that the differential between the sentences of the arson defendants was so small for it to be a basis for interfering with those sentences. We are influenced in that decision by the fact that all their sentences were at the bottom of the range.
    

The malicious damage defendants

28. The maximum sentence on each charge was a sentence of one year's imprisonment. In that context, on all the charges they faced a theoretical maximum of 5 years if there were cumulative sentences.
    
29. There were aggravating factors about the offending. The damage done was extensive and involved the use of potential weapons. Valuable domestic animals, including dogs and a horse, were deliberately killed. A very substantial number of gardens and plantings were destroyed. This was serious malicious damage on five occasions and high on the scale of culpability.
    
30. The end sentences of nine months' imprisonment were severe. However, they were within the range, albeit at the top of that range. The more lenient suspended sentence given to Mr Moli was justified by his youth, (he was 18 years old when the offences occurred), and his genuine remorse. Uniquely, he had a high level of motivation to address his offending. The judge's decision to impose custodial sentences on the others must be seen in the context of the need to deter individuals from taking the law into their own hands and to inflict gratuitous damage to property in such an extreme manner as occurred here.
    
31. While this offending was much less culpable than the arson offending, no parity issues arise given that the sentences were much lower than for the arson offending and that these were very serious cases of malicious damage.
    

Conclusion

32. We do not consider any of the sentences to have been manifestly excessive. Indeed, all three arson defendants should regard themselves as fortunate that they did not receive longer sentences.
    

Result

33. The appeals are dismissed.
    

DATED at Port-Vila, this 8th day of April 2011

BY THE COURT

Hon. Vincent LUNABEK CJ

Hon. John Mansfield J

Hon. Raynor Asher J

Hon. Daniel Fatiaki J

Hon. Robert Spear J