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Public Prosecutor v Vatu [2021] VUSC 121; Criminal Case 1406 of 2021 (28 May 2021)

IN THE SUPREME COURT OF Criminal

THE REPUBLIC OF VANUATU Case No. 21/1406 SC/CRML

(Criminal Jurisdiction)

PUBLIC PROSECUTOR

v

JOSELITO VATU

JOHANES VATU

Date: 28 May 2021

Before: Justice V.M. Trief

Counsel: Public Prosecutor – Mr D. Boe

Defendant – Mr T.J. Botleng

SENTENCE

1. Introduction
   

1. Joselito Vatu pleaded guilty to one charge of inciting and soliciting commission of an offence (Count 1). Johanes Vatu pleaded guilty to one charge of intentional assault causing permanent injury (Count 3). They are convicted on their pleas and the admitted facts.
   

2. Facts
   

2. On 12 December 2020 at Beleru area on Santo, Joselito Vatu who was driving a white Toyota land cruiser motor vehicle chased the complainant Ken Maliu. He was about to hit Mr Maliu with the truck when Mr Maliu fell to round. He stoe stopped the vehicle. Johanes Vatu exited the vehicle and assaulted Mr Maliu (Count 1).
   
3. Johanes Vatu punched Mr MaMr Maliu in the face and felled him. When Mr Maliu was on the ground, Mr Vatu, who was wearing shoes, kicked him in the side several times. Mr Maliu was rendered uncous wous with heavy bleeding from his body (Count 3).
   
4. Th4">The next day, Mr Maliu’s relatives assisted him to the Northern Dern District Hospital. The medical report confirmed Mr Maliu’s injuries as follows:
   
   1. Laceration of 2cm at left eye brow;
   2. Haemotpma at left lower eye lid;
   100. Painful and tender bilateral temporomandibular joint which result in inability to fully open his mouth;
   4. Swelling at left hemi-thorax;
   5. Painful and tenderness at left hemi-thorax; and
   6. Multiple rib fractures at left hemi-thorax from 3^rd-6^th ribs.
5. Joselito Vatu admitted to the Police that he used his truck to chase Mr Maliu and that he assisted Johanes Vatu to assault him on 12 December 2020. Johanes Vatu openly admitted that he assaulted Mr Maliu, felled him and then kicked him several times on 12 December 2020.
   
6. Dr Basil Leodoro’s medical opinion dated 21 May 2021 sets out that based on Mr Maliu’s al reports, cts, clinical notes and radiological findings, it is his professional conclusion that with the degree of blunt force trauma and multiple, segmental ractures (3^rd-6^th ribs) that he suffesuffered, Mr Maliu will develop early osteoarthritis and experience chronic pain and discomfort at the levels of those rib fractures for the remainder of his life.
   
7. Mr Botleng’s submissions in relation to various medical reports and the extent of Mr Mal217;s injuries did not anot assist me. After his clients entered their pleas, Mr Botleng on their behalf accepted the Brief of Facts as being true and correct. The facts were admitted. There was no longer any scope to argue factual matters.
   

100. Sentence Start Point and Personal Factors
     

8. The sentence start point is assessed having regard to the maximum sentences available, and the mitigating and aggravating factors of the offending.
   
9. The maximum sentences prescribed in the Penal Code [CAP. 135] are:
   
   1. inciting and soliciting commission of an offence (s. 35) – 20 years imprisonment; and
   2. intentional assault causing permanent injury (s. 107(c)) – 10 years imprisonment.
10. There are no mitigating factors of the offending.
    
11. The offending is aggravated by:
    
    • Unprovoked attack – Mr Maliu is alleged to have been involved in an assault on Joselito Vatu’s son in November 2020 however that does not justify the Defendants taking matters into their own hands and inflicting violence;
    • The degree of force used including a punch to the face that felled Mr Maliu and then Johanes Vatu using his shoes to kick Mr Maliu in the side;
    • The repetition of kicks to Mr Maliu while he was on the ground; and
    • The effect of the assault on Mr Maliu’s health which he will suffer for the rest of his life.
12. The factors set out above require a sentence start point of 4 years imprent for Johanes Vnes Vatu and of 3 years imprisonment for Joselito Vatu.
    
13. Joselito Vatu is 43 years old. He is married and has 5 children all of whom attend school in Luganville. He has no previous convictions. Mr Vatu makes a living from sales of land, farming and selling agricultural crops at Luganville Market. He owns cattle and goats at Beleru, and employs about 30 people altogether in his farmininess, which he self-manages. He operates a private kindergndergarten at Beleru which 28 childreend. Mr Vatu hatu has the supporChif Chief Victor Andre Moltures at Beleru, who he is an assistant to. He is also the assistant spokesperson of their familr lanancy at Beleru area.
    
15. Mr Maliu refused the Defendants’ offer to perform a custom reconciliation ceremony. Joselito Vatu is stated to have prepared fines of a pig, VT20,000 cash, 1 head of kava, 1 mat and 4 bundles of taro and remains willing to perform a reconciliation ceremony if Mr Maliu changes his mind. He is also willing to pay compensation to Mr Maliu for the injuries he sustained duringoffending. For Mr Vatu’s personal factors, I deduct 6uct 6 months from the sentence start point.
    
16. Johanes Vatu is 26 years old. He is in a de fact>relationship. He makes a living from planting kava, other ther garden produce and from a kava bar and retail store. Mr Vatu has previous convictions for harbouring an escaped prisoner and possession of cannabis. Mr Vatu is d to be remorseful eful and knows that he committed a crime. He promised not to offend again in the future. That does not sit well with his previous convictionsver Mr Vatu has prospects of rehabilitation given his relatrelative youth and entrepreneurial ventures. He is willing to perform a custom reconciliation ceremony if Mr Maliu agrees. For Mr Vat17;8217;s personal factors, I deduct 2 months from the sentence start point.
    

4. End nce – Joselito Vatu atu
   

17. Taking all of those matters into account, the end sentence for Joselito Vatu is 18 months imprisonment for inciting and soliciting commission of an offence (Count 1).
    
18. I have the power to suspend a sentence in whole or in part. Joselioselito Vatu’s fall from grace is in itself punishment. However, I reiterate that as a leader within the community at Beleru area, he has a responsibility to lead by example to solve disputes through dialogue, not violence. In view of his responsibilities to his children, business and employees, and prospects for rehabilitation, I suspend Joselito Vatu’s sentence for 2 years. Mr Vatu must remain offence-free for the next 2 years owill need to serve hrve his sentence of imprisonment in addition to any other penalty that e imposed on him for the further offending.
    
19. Through counsel’s sentencing submissions, Joselito Vatu has offered to pay compensation to Mr Maliu. I am satisfied that Mr Vatu has the means and ability to pay the monetary compensation offered.
    
20. Joselito Vatu is to pay compensation to Mr Maliu for the amount of VT150,000, payable in monthly instalments as follows:
    
    1. June 2021 VT30,000
    2. July 2021 VT20,000
    100. August 2021 VT20,000
    4. September 2021 VT20,000
    5. October 2021 VT20,000
    6. November 2021 VT20,000
    7. December 2021 VT20,000

TOTAL VT150,000