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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
Criminal Jurisdiction
CRIMINAL CASE NO. 09 OF 2001
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PUBLIC PROSECUTOR
–v-
JOSEPH MALESU
Coram: The Chief Justice Vincent Lunabek
Mrs. Heather Lini Leo the Public Prosecutor
Mr. Willie Daniel for the Accused/DefendantDate of Sentencing: 12th April 2001
SENTENCE
This is the sentence of Joseph Malesu. He is of Nguna/Pentecost islands origin, Vanuatu, who was charged of the offence of intentional assault causing death, contrary to section 107(d) of the Penal Code Act (Cap. 135). The offence attracts a maximum penalty of 10 years imprisonment.
The accused/defendant pleaded guilty to the offence as charged.
From the facts, the defendant is a registered nurse and a legally married man. He, formerly, had a de facto relationship with Jessie Dick, the victim/deceased. As the result of that relationship they have three children. The defence counsel informed the court that the defendant has been maintaining the victim/deceased and the three children.
On 13th February 2001, at Federation Area in Port Vila, he visited the victim/deceased. A man was sleeping with the deceased. The defendant and the deceased had a quarrel. As the result of the quarrel, the defendant used his fist and legs to punch and kick the deceased on the head. The defendant then took her to the Vila Central hospital in early morning of 14th April 2001 and she died as the result of the serious damages to her brain around 4.00 p.m.
The court noted that you pleaded guilty to the offence. You report yourself to your brother who is a police officer of what happened and cooperate with the police in their investigation.
Your counsel told the court that immediately when you assaulted the deceased having realised the seriousness of the offence you arranged the taxi to carry the deceased/victim to the hospital. You arranged a first taxi and the deceased refused to go in. After some minutes you stopped another taxi and finally brought the deceased in and take her to the hospital. As a registered nurse you had tried all your best and assisted the duty nurse on your arrival with the deceased at the hospital. You went home and informed your family and children and they were sorry and cried. The court was also informed by your counsel that you came to the hospital to see the victim/deceased. Having found out that the condition of the deceased was critical from her patient record you felt remorseful and cried.
The court was informed by your counsel that you wanted to attend the deceased’s funeral but you were stopped by the police. You gave VT70, 000 to meet the funeral expenses.
Your counsel told the court that what happened was a mistake and you are remorseful.
I must remind you that the offence of this kind is very serious. Your counsel told the court that you did not intend to cause the deceased to die. As a man, using your fists and legs to kick a woman, a human being like you is intolerable in a society like Vanuatu. Man and woman are all human being and are not animal to be assaulted like you did to the deceased.
In this trial, the accused/defendant was convicted of the offence of intentional assault. Offence of this nature is becoming common and increasing in Vanuatu society. Certainly, this will not be tolerated.
In sentencing the accused/defendant, I must bear in mind that it is in the community’s interests that I make sure that the sentence I impose on the defendant will have a deterrent effect on him, so that he will not re-offend.
I also bear in mind that the kind of sentence to be imposed will serve as a deterrent for others in the community who might be tempted to act violently against women as the offender has.
As such, the offence of intentional assault causing death warrants an immediate term of imprisonment. The maximum penalty imposed by law is ten (10) years imprisonment.
I will now determine the appropriate sentence to be imposed on the offence as charged. In order to do so, I must ask myself, “how long?”
The court noted the sentences imposed by Vanuatu Supreme Court in similar cases cited by the counsel for the defendant which are for 2 years. This is too lenient.
The sentence to be imposed by the Court, under Section 107(d) of the Penal Code Act, in disputed cases, depending on the particular circumstances and situations of each cases.
In situation where the defendant had a weapon (such as a gun, a knife or other dangerous objects) and use it to cause bodily harm to the body of another person and as a result of which the victim died, the sentence to be imposed in a disputed case ranges from 8 to 10 years.
In situations where the defendant uses his fist and legs to cause serious injuries to the body of another person and causes the victim’s death as the result of the injury, the sentence to be imposed is around four (4) to seven (7) years.
In the particular case before me, considering the circumstance and mitigating factors before the Court, the appropriate sentence is five (5) years.
Because you pleaded guilty and cooperated with the police and show through you conduct that you are remorseful of what you do, constitutes a good case of mitigation. Credit of 1/3 will be given to you and you will only spend 3 years and 4 months in prison.
The defendant has already spent 2 months in prison. This will be deducted from the above sentence. The defendant will be sentenced to 3 years and 2 months. If Mr. Joseph Malesu behaves himself in prison he will have 2 months remission.
The deceased’s family are advised to file a separate civil compensation claim.
14 days to appeal.
DATED at PORT-VILA, this 12th DAY of APRIL, 2001
BY THE COURT
LUNABEK Vincent
Chief Justice
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