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Public Prosecutor v Kawia [2004] VUSC 72; Criminal Case 003 of 2004 (6 May 2004)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
Held at Isangel, Tanna
(Criminal Jurisdiction)

CRIMINAL CASE No. 03 of 2004

PUBLIC PROSECUTOR

-v-

JOHNNY KAWIA

Charge: Intentional Assault resulting in death,
contrary to Section 107(d) of the Penal Code Act [CAP. 135]

Coram: Chief Justice Lunabek

Counsel: Ms Kayleen Tavoa for the Public Prosecutor
Mr. Jacob Kausiama for the defendant

Clerk: Jona Mesau

Date of Plea: 26 May 2004
Sentence: 26 May 2004

SENTENCE

This is the sentence of the accused, Johnny Kawia. The accused is charged and pleaded guilty to the offence of Intentional Assault resulting in death of his wife, Nasuaiu Johnny, contrary to Section 107(d) of the Penal Code Act [CAP. 135].

The accused is from Imnawe Village, Tanna. On 18 May 2004, he assaulted Nasuai by kicking her with his right leg on Nasuai’s left side abdomen. Nasuai’s body sustained injury which resulted in her sudden death on the same date.

On 19 May 2004, Lava Kunar, the deceased’s father filed a criminal complaint to the police. He did not witness the fatal incident causing the death of his daughter. He stated he wanted that the defendant must be dealt with by the Courts of law and he also claimed compensation for the death of his daughter.

Sena Isaiah is one of the persons who witnessed directly the fatal incident of 18 May 2004. She filed a statement to the police on 19 May 2004. The content of Sena’s statement is not disputed by the defendant. Sena Isaiah is from Imnawei village, Tanna. She made the statement to confirm what she witnessed which resulted in the death of the deceased Nasuaiu on 18 May 2004. On 18 May 2004, she stated that at about 17.30 hours, she was with Nasuaiu in the kitchen as they both used to do because they married the two (2) brothers (the defendant and his brother).

At that time of the afternoon, the ladies were busy preparing the food (nafunu) for the man to take to the nakamal. At that time, the defendant, Johnny Kawia was fixing the fence of his father’s pigs.

Nasuaiu prepared food in the saucepan and added coconut milk into the saucepan. She then took the residue of the mixed coconut to feed the pigs. It was at that time that her little son cried. She then returned and attended to her son.

She took her son and sat with Sena in the kitchen. Shortly after, Johnny Kawia arrived in the kitchen and said: “Yu no stap mekem pikinini i crae.” And at the same time she said she saw that Johnny kicked Nasuaiu just once on Nausuai’s left side while she was sitting and serving food (nafunu).

After the assault, she saw Nasuaiu serving food in a plate and the words Nasuaiu said was: “Mifala i stap karem hemia, be hemi still stap crae.”

The defendant’s mother also was with Sena and Nasuaiu in the kitchen during the assault incident.

The defendant’s mother gave to Nasuaiu her other child who is crying. Sena stated that it was at that time that Nasuaiu felt on the ground. Sena attempted to massage Nasuaiu’s body to resuscitate her. She tried but in vain. She died instantly. Sena called for help and informed people at nearby nakamal that Nasuaiu was dead.

Chief Kaolek Iorau made a statement to the effect that the defendant assaulted his deceased wife on regular basis. A medical report from Dr. Fockler of Isangel Hospital, Tanna, dated 19/05/2004, was produced.

The defendant, Johnny Kawia made an admission statement on 24 May 2004, after he surrendered himself to the police at Isangel, Tanna for his own security as he feared the relatives of his deceased wife. He was there on 18 May 2004. He fixed the fence for his father’s pigs. He heard his son cried. He got cross. He entered the kitchen and kicked Nasuaiu on her left side. She died and left behind her two sons. One of the sons Nasuaiu had with another man before she married the defendant in 2002.

Apart form a little difference as to which side of the deceased’s abdomen was kicked by the defendant, as he said he kicked the left side of the deceased’s abdomen and the medical report seemed to indicate a trauma was on the deceased’s right side, the defendant agrees that he assaulted the deceased on her abdomen on 18 May 2004 and she died almost after the assault.

The deceased was examined by the doctor. The conclusions drawn from the examination indicate that Nasuaiu John died on unnatural premature death as a result of a blunt trauma to the right upper area of the abdomen. The trauma caused massive internal hemorrhage in both the abdominal cavity and right lung cavity as indicated by positive taps of these two areas. The findings of the examination are consistent with trauma resulting from a kick as described by the witness Sena Isaiah.

The relevant Sections of the Penal Code Act [CAP. 135] are set out below:-

Section 107(d) and 109 are the relevant provisions of the Penal Code Act.

Section 107(d) provides:

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

(a) ...

(b) ...

(c) ...

(d) if the damage caused results in death, although the offender did not intend to cause such death, imprisonment for 10 years.”

Causing death is defined under Section 109 as follows:

“109. A person shall be deemed to have caused the death of another person although his act is not the immediate or sole cause of death in any of the following cases-

(a) if he inflicts bodily injury on another person in consequence of which that other person undergoes surgical or medical treatment which causes death. In this case it is immaterial whether the treatment was proper or mistaken, if it was employed in good faith and with common knowledge and skill; but the person inflicting the injury is not deemed to have caused the death if the treatment which was its immediate cause was not employed or was so employed without common knowledge or skill;

(b) if he inflicts bodily injury on another which would not have caused death if the injured person had submitted to proper surgical or medical treatment or had observed proper precautions as to his mode of living;

(c) if by actual or threatened violence he causes such other person to perform an act which causes the death of such person, such act being a means of avoiding such violence which in the circumstances would appear natural to the person whose death is so caused;

(d) if by any act or omission he hastened the death of a person suffering under any disease or injury which apart from such act or omission would have caused death;

(e) if his act or omission would not have caused death unless it had been accompanied by an act or omission of the person killed or of other persons.”

The facts as admitted show that the accused, Johnny Kawia intentionally assaulted the deceased wife Nasuaiu Johnny at Imnawe village, Tanna, on 18 May 2004 by kicking Nasuaiu on her abdomen while she was sitting and serving food.

The assault caused damage/injury to Nasuaiu’s body leading up to massive internal hemorrhage in her abdominal cavity and right lung cavity. The damage or injury caused to Nasuaiu’s body resulted in her death on 18 May 2004. The facts are not in dispute. They are admitted by the defendant.

The defendant is a first time offender. He is about 25-26 years old. He married with the deceased sometime in 2002 in a custom marriage ceremony. The defendant and the deceased had 1 son and the deceased had a son in a previous relationship. In 2002, after the marriage until the fatal incident of 18 May 2004, the defendant and late Nasuaiu have two (2) children.

In sentencing the defendant, the Court took all these mitigating factors into account. However, kicking the belly or abdomen of a sitting woman is an aggravating feature. In the present case, there was no provocation whatsoever. This is not the first time that the Court deals with a man fatally kicking a woman on her abdomen. On 19 December 1999, this Court found the accused, Sheddrack Joseph, guilty of assaulting his wife by kicking her on her abdomen, contrary to Section 107(d) of the Penal code Act [CAP. 135]. The Court convicted and sentenced the accused to 5 years imprisonment for such an offence. When sentencing the accused, Johnny Kawia, in the present case, the Court reminded him of the statement made in PP v. Sheddrack Joseph, Criminal Case No. 4 of 1999.

The accused, Johnny Kawia, you must now understand that Nasuaiu Johnny, is a woman and a human being like you. A human being, whether a woman or a man, is not an object or an animal to be assaulted as you did on your wife. She deserves your love, care and protection.

This type of offence is becoming common now in Vanuatu society and in particular, in Tanna. This will not be tolerated.

In sentencing you, I must bear in mind that it is in the community’s interests that I make sure that the sentence I impose on you will have a deterrent effect on you, so that you will not re-offend.

I also bear in mind that the kind of sentence to be imposed will serve as a deterrent to others in the community who might be tempted to act violently against woman as you did.

It is my humble opinion, the offence of intentional assault resulting in death, warrants an immediate custodial sentence. The maximum penalty set by Parliament is 10 years imprisonment.

The appropriate sentencing guideline is as set out in PP v. Sheddrack Joseph and PP v. Joseph Malesu and applied by the Court of Appeal in Richard Ierogen v. Public Prosecutor in Civil Appeal Case No. 7 of 2002. It is in the following terms:-

“The sentence to be imposed by the Court, under Section 107(d) of the Penal Code Act, in disputed cases, depends on the particular circumstances and situations of each case.

In situations where the defendant had a weapon (such as a gun, a knife or other dangerous objects) and used 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.”

I have taken into account the mitigating and aggravating features. On balance, it is my opinion that kicking a woman on her abdomen, in particular, kicking a sitted woman who served food for her husband and children and without any provocation whatsoever, cannot be out weighted by the mitigating factors placed before me.

The appropriate sentence is 4 years imprisonment.

One third of that term of sentence of imprisonment be deducted for your guilty plea.

You have spent a week in police custody before you appeared for your pleas. That period will be deducted in your favour.

You are now convicted of the offence of Intentional Assault, contrary to Section 107(d) of the Penal Code Act [CAP. 135], and sentenced to a term of imprisonment of 22 months.

This sentence is to be served with immediate effect.

14 days to appeal.

Any claim for civil compensation, if there is any, has to be properly lodged and pleaded before the Civil Court.

Dated at Isangel, Tanna this 26^th day of May 2004

BY THE COURT

Vincent LUNABEK
Chief Justice