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Public Prosecutor v Michel - Sentence [2012] VUSC 245; Criminal Case 106 of 2012 (30 November 2012)

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

CRIMNAL CASE No.106 OF 2012

PUBLIC PROSECUTOR

- v –

BRIAN MICHEL

Coram: V. Lunabek CJ
Counsel: Ms Kayleen Tavoa, Public Prosecutor
Mr Eric Molbaleh for the Defendant

Date of submissions and sentence: 30 November 2012

SENTENCE

Brian Michel, you appear today for sentence. You were charged and tried after you entered a not guilty plea on one count of intentional assault causing damage of permanent nature on the body of another person, contrary to section 107(c) of the Penal Code Act. On 14 November 2012 you were found guilty and convicted of that offence. Section 107(c) prohibits this type of offending in the following terms:

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

Penalty:

(c) if damage of permanent nature is caused, imprisonment for 5 years."

I need not go back in great details on the facts of the case as found by the Court against you. Suffice it to say that on 12 April 2012 while you were under the influence of alcohol, on the road between Malapoa and Tebakor, you found the complainant, Willie Sandy, the Deputy Principal of Malapoa College walking with his girl students on the road to return to their respective homes. You called the girls to attract their attention but they did not respond to your call. You called the complainant but he did not respond to your call. You then swore at him. While still walking on the road the complainant had his eyes fixed at you. You asked him for fight. You crossed the road to the side of the road he was walking with the girls. You persisted and asked the complainant for fight. You threw punches on him. The girls ran away to their respective homes. The complainant was surrounded by you and others. In an attempt to escape from you and others, he punched you on your nose. You then moved and your move create a space for the complainant to escape. The complainant ran towards Tebakor and back to Malapoa College direction as other group of young men blocked the road on the Tebakor side. You chased him with others. You kicked the complainant with your caterpillar safety shoes of yellow colour that you wore at that time. You kicked him on his right rip. The complainant continued to run by crossing the road. He was pushed by another (Henry Paul) who ran faster on the other side of the road. The complainant fell on the ground and when he was still on his knees and held the ground with his two (2) hands, at that time, and, at that position, you stood in front of him. You kicked the complainant with your safety boots on his mouth causing damage on the body of the complaint as a result of which he lost two (2) of his teeth and suffered serious cuts on his cheek.

As you can now realise, your offending is a serious offence. It carries a maximum penalty of 5 years imprisonment. In the process of considering the appropriate sentence I am going to impose on you, I take into account of the pre-sentence report and submissions of the public prosecution and submissions made by your lawyer on your behalf. As part of your sentencing, I must as I now do denounce on behalf of the Court your behaviour. It is unacceptable and intolerable to behave in the way you did on 12 April 2012 when you approached the complainant and chased him and assaulted him on the public road. The complainant had to undertake medical surgical operations; had spent 4 nights in the hospital and had to endure 6 months without food but living on milk and juice as the result of your offending.

For offences of this nature, the starting point of the sentence is 2 years imprisonment. [See Public Prosecutor v. Iawafil [2010] VUSC 90; Criminal Case No.35 of 2010 (2 July 2010)].

In the present case, the seriousness of your offending is aggravated by the following factors:

- Use of a caterpillar safety boot
- Force used in the kick with the safety boots
- Loss of two teeth as the result of the kick.

(I note that you have been convicted for rape, contrary to section 91 of the Penal Code and sentenced to supervision as you were 15 years of age at the time of offending in 2007. I do not take it in the aggravating consideration in your sentencing).

Your sentence is increased by 2 years to reflect the seriousness and aggravation of your offending. It so totals up to 4 years imprisonment on seriousness and aggravation.

In mitigation, you are 21 years of age. You have two (2) young daughters of 1 and 4 years respectively. You are now living separately from the mother of your children. You looked after your younger daughter of 1 year and your grand parents look after your other daughter of 4 years. You have no remunerated job. You are a gardener. You sell the produce of your gardening and fishing into the market to make a living. You are a year 8 school leaver. You stopped your education because you parents could not afford to pay for your school fees. You had asthma during your childhood until 2001 when its effect was gradually reduced on your health.

Your ambition is to build a permanent house and make a store business to make a living for you, your children and family.

You come to realise that what you did to the victim complainant was bad and contrary to the law. You told your lawyer to express on your behalf your apologies to the victim, his wife and children and extended families. You told your lawyer to convey your apologies also to the Malapoa College Staff, Students, Principal and College Council. You told the Court through your lawyer that your will not re-offend again.

You are intended to perform a custom ceremony to the victim but the victim refuses to accept your custom reconciliation unless you meet with his conditions. But you could not meet them. I take into account of your intention to do so and I take all that what your lawyers told the Court when I consider your sentencing.

I also take note that you were under the influence of alcohol after consuming 2 cups of beer. On balancing between the aggravating and mitigating factors, I reduce your sentence for 1 year leaving a balance of imprisonment sentence terms of 3 years to serve. You have already spent a period of 1 month and 6 days in pre-custody periods from 23 April 2012 to 29 May 2012. This will be discounted in your favour.

I consider but decline to suspend your imprisonment sentence of 3 years because of the seriousness and aggravation of your offending.

You are ordered to serve 3 years imprisonment. Your sentence of 3 years imprisonment is deemed to start on 23 April 2012.

You have 14 days to appeal this sentence if you are unsatisfied with it.

DATED at Port-Vila this 30th day of November 2012

BY THE COURT

Vincent LUNABEK
Chief Justice