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Vira v Public Prosecutor [2001] VUSC 13; Criminal Appeal Case 006 of 2000 (26 February 2001)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Appellate Jurisdiction)

Criminal A Case No.6 of 2000

BETWEEN:

JACK VIRA

Appellant

AND:

THE PUBLIC PROSECUTOR

Respondent

ass="MsoBoMsoBodyText" style="margin-top: 1; margin-bottom: 1"> Coram: Before Mr Justice Oliver A. Saksak

Ms Cynthia Thomas – Clerk

Appellant appears in person

Inspecnspector Wilson D. Garae for the Respondent

lass="MsoBoMsoBodyText" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> JUDGMENT

The appellant was convicted on 11^th October, 2000pleaded not-guilty to intentional assault contrary to sectisection 107(a) of the Penal Code Act (Cap.135) the Act. He was sentenced to a fine of VT45,000 in default of which he would be imprisonment for 10 months. Additionally he was ordered to pay compensation to the victim of the assault in the sum of VT5,5 00. He was allowed one month to pay the total amount of VT50,500 payable in two instalments. He appealed by lodging his Notice of Appeal and Memorandum of Appeal on 20^th October, 2000. The Office of the Public Solicitor did the filing for him. No one from that office is available to present the appellant’s case today. Liberty is given to the appellant to present his own appeal. He tells the Court that the sentence imposed on him is manifestly excessive. He tells the Court that he and his family of five have to live on VT12,000 each fortnight. That a deduction of the other VT12,600 is made every month towards his outstanding liabilities. He has receipts showing these deductions.

His main grounds of appeal is that the sentence impose was manifestly excessive. There are two particularspan>

(b) ;&nbssp; &nsp; &nbs; &nbbp;&n p; That that the Court failed and/or neglected to consider the denial by the Defendf anyonsib of tfenceged ater a guilty plea plea on behalf of the Defendant and proceeroceed to d to hear hear the cthe case aase as a trial, with the prosecution to call evidence to prove the offence as charged against the defendant.”

From the records it is clear that the appellant pleaded not-guilty on 20^thth October, 2000 where evidence was adduced from witnesses including the victim. The grounds particularised under (b) cannot be sustained. I will therefore not interfere with the Court’s findings of guilty.

The appellant is a police officer serving for some 11 years. He committed the assault in the course of his official duties. This weighed heavily against the appellant so much so that in order to deter others the court below imposed a high fine. There is nothing on record to show that other mitigating factors were put forward and whether the appellant appearing in person was allowed the opportunity to address the court in mitigation before sentence.

class="MsoBoMsoBodyText" style="margin-top: 1; margin-bottom: 1"> I am therefore prepared to accept that other mitigating factors not sufficient considered in imposing sentence.

On 16^th October, 2000 some 5 days later the Court below sentenced another police officer charged under section 107(b) to a fine of VT40,000 and costs in the sum of VT3,000 payable in three instalments. This was in the Criminal Case No.389 of 2000 Public Prosecutor V. Jack Lawrence. This case also came on appeal and I heard it this morning and reduced the fine of VT40,000 to VT22,000.

The law as seen in section 107 reads:-

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

Penalbsp; &nnsp;&&nsp;;&nspp; (s) &nb) &nbs; &&nbp;; ifpno physical dama damage is caused, imprisonment for 3 months;

pan lEN-GB">(b) &(b) nbsp;&nbsp &nbssp; mage of e of a temporary nary nature is caused, imprisonment for 1 year,

(c) ……………………………………..,

(d) ……………………………………..”

For an offence under section 107(a) the penalty is a maximum of up to 3 months. The appellant, Jack Vira ined VT45,000 or in d default imprisonment for 10 months. In my view this period of imprisonment is well outside the maximum period imposed by law.

As to the amount of fine, an offence under section 107(b) is more serious than an offence under section 107(a) and yet in Criminal Case No.389 of 2000 the Court there imposed a lighter amount of fines being VT40,000. There is clearly a disparity here. On appeal, this Court has reduced the fines from VT40,000 to VT22,000. With that in view, I now reduce the appellant’s fines from VT45,000 to VT18,000 for an offence under section 107(a).

For these reasons I accordingly allow this appeal. I direct and order as follows:-

(1) &  &nbbp;&nnbs; &nbs; span>The fines of VT45,0T45,000 be reduced to VT18,000.

(2)  p;&nbbsp;&nsp; &nsp;  p; &nnsp;& sp; Than>The order of damages of VT5,500 be upheld.

(GB">(3) ; &nnsp;&&nsp;;&nbp; &nbp; /s The appellant be rebe required to pay a total of VT23,500.

n lan-GB">pan style="fle="font:7ont:7.0pt .0pt "Times New Roman""> &nnbsp; &nsp; &nbbp;&nnbp;&&nbp;; &nsp; The s VTof,5003,500 shall be paid fully within a period of 3 months commencing on the date of thigemenpan><

(5) &nbssp;&nnbsp;&nsp; &nsp; &nbssp; &&nsp;; sp; Inan>In default of payment under Order (4) the appellant be imprisoned for a period of one (1) month. ">

DATED at Luganville this 26^th day of February, 2001./p>

BY THE COURT

OLIVER A. SAKSAK

Judge