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Public Prosecutor v Jackson [2005] VUSC 143; CRC 069 2005 (15 December 2005)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

Criminal Case No. 69 of 2005

PUBLIC PROSECUTOR

–v-

MAHIT JACKSON

Coram: Justice Treston

Mr. Obed for Public Prosecutor
Mr. Bartels for Defendant

SENTENCE

Mr. Jackson Mahit, you appear for sentence today on 2 charges of threatening to kill and 1 charge of assault.

This matters occurred in 2004, when you were working as a Security staff at the National Airport at Port Vila. The victim was your supervisor at that time. There had been some differences between you and the victim, it seems from your version of the story by virtue of his time keeping of your hours. According to your lawyer, you took some steps to address this, you wrote to the principle security officer seeking clarification. You personally approached the principal security officer to arrange a discussion in the conference but these steps did not eventuate in a meeting for a resolution of your concern. But this step did not eventuate in a meeting for a resolution of your concern. You then as your lawyer have agreed took the law into your own hands and about 10pm on 15 April 2004, you had an axe hidden behind your jacket and about 10pm, you walked up to the victim and threaten to chop his head with the axe, then at about 10.25pm later on 16 April 2004, you walked towards the victim again when you had a weapon namely a knife, you first of all, punched the victim in the head, in the forehead region, you then took the knife out and tried to cut his throat, so clearly on that occasion you intended to make good any threat that you had in your mind. Clearly the second threat to kill some 24 hours after the first which resulted in the use of the weapon then had was much more serious than the first threat.

The summary said that you acted under anger because you weren't happy how you were supervised. The victim reported the matter to the police on the day after the second occasion on 17 April 2004. The threats to kill charges are laid under section 115 of the Penal Code Act [CAP. 135] and the maximum penalty in relation to each of those offences is 15 years imprisonment. The intentional assault was laid under section 107 (b) of the Code and the maximum penalty is imprisonment for 1 year in the circumstances of this case.

The Prosecutor submitted to me that while he accepted that you had pleaded guilty at first instance, a sentence of imprisonment should be imposed to mark the gravity of the offence, to punish you and to protect the community. He accepts that you are a first offender without previous convictions and submits that the appropriate starting point should be 24 months imprisonment without object to any suspension of that. On your behalf the Prosecutor has provided me with a number of cases that relates to assault but he was unable to find any that related to threaten to kill. On your behalf, I was advised that you are aged 58 years and that you are currently unemployed. You job having been terminated not unexpectedly as a result of these offences. You are a married man with 3 young girls aged 12, 9 and 6. Your wife has been unemployed until recently when she now has a job, some references has been made by your counsel as to the growing frustration that you felt about the issues I have already referred to. You say that you have endeavoured to deal with the matter in some small measure as by way of compensation by custom but the victim has chosen not to part take in such a ceremony. The matter happen now some 20 months ago and I might have thought that within that time something could have been done if at all possible and in addition the Court has already given you some 9 days or so to finalize that but it hasn't been able to be done.

Your lawyer initially sought a further adjournment to allow completion of a custom settlement but it is my view that under section 119 of the Criminal Procedure Code Act [CAP. 136], any further postponement would lead to undue delay but of course I take into account your good will at that regard. On your behalf I have been asked to take into account mitigating factors including your plead of guilty. You endeavour to complete compensation by custom. The fact that you are a first offender and the fact that you suffered some penalty by losing your job but of course that was a direct consequence of your own criminal actions. It was submitted to me that I should treat your actions as an error of judgment and that these were not the worse offences within the range of offenders even though the victim received the cut to his hand. It was submitted that any threat to kill was done in the heat of the moment and should be considered as empty threats but with the greatest respect I do not agree with that because on the first occasion you had an axe and on the second occasion which was only just over 24 hours later, you had a knife and you used it, though they were hardly empty threats in my view on either occasion although the second one was somewhat worse than the first. In addition it was submitted that in the 20 months or so since the offence that has been no further trouble between you and the victim but that in my view it was more good luck than good management and it is not unexpected because you did not continue to work with him. It was submitted that you plea of guilty and your endeavour to take part in compensation by custom show genuine remorse and contrition. Your lawyer conceded that a 2 year starting point might be appropriate for the Court.

However, when I turn to the Suspension Act [CAP .......] I note that the section provides for suspension and that the Court must take into account the make sure of the crime and the character of the offender. It is my view that the Court in this case must make you suffer a penalty and it would be inappropriate for you not to suffer such penalty. I say that because the nature of the crime was repetitive, weapon were present on both occasion and on the second occasion you used the knife to inflict injury, as I say I do not consider this are empty threats because on both occasions you have the means to make good your threats. In sentencing I must take into account your responsibility and accountability for harm to the victim and to the victim generally. I must denounce your conduct particularly the use and the presence of the weapons. I must deter you and other like minded offenders from the sort of behaviour and I must protect not only the victim but also the community at large. Of course I will impose the least restricted outcome upon you that is appropriate but on the aggravating side of things there was the use of a weapon on the second occasion, that use of the weapon caused harm to the victim, the offences were repetitive occurring on two nights after the other, it was hardly in my view that heat of a moment particularly the second one and there were elements of premeditation in that.

By way of mitigation of course, I will take into account you guilty plea, I do not consider that the conduct of the victim that you alleged merit the sort of response that you gave, however, I take you expressions of remorse and contrition and your previous good character as a first offender. The aggravating feature clearly outweigh by significant margin that the mitigating ones. On count 1 the threatening to kill charge of 15 April 2004, you are sentenced to imprisonment for 18 months, on count 2 the intentional assault on the next night 15 April 2004, you are sentenced to imprisonment for 6 months, on the second threaten to kill charge on 16 April 2004 combined with the assault charge causing injury with a knife, you are sentenced to imprisonment for 2 years. I am of the view that the 2 threaten to kill charges and the sentences for them may be served concurrently, however, the assault on the second occasion in my view was separate, desperate and aggravating to the second threat to kill charge, that six months must be served accumulatively on the other two sentences that means that the total imprisonment I today impose is 2 1/2 years imprisonment for 30 months, I allow you as I have indicated in my remarks about mitigation, credit for the plea of guilty and your attempted custom settlement as a result I reduce the 30 months imprisonment to 18 months imprisonment in total, that allows you 1/3 for your plea of guilty and a small allowance for your attempted custom settlement, as I say and the reasons I have already given I do not consider that you are a candidate for a suspended sentence. You have 14 days to appeal that sentence.

Dated AT PORT VILA on 15 December 2005

BY THE COURT

P. I. TRESTON
Judge