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Public Prosecutor v Hocten [2020] VUSC 11; Criminal Case 1628 of 2019 (20 February 2020)

BETWEEN: Public Prosecutor

AND: 1. Hellen Hocten

2. Janeth Saling Hocten

3. Lolita Sumsum

4. Hellen Violet

5. Gloria Violet

6. Paul Hocten

7. Johnson Harry

8. Tom Violet

Defendants

Date of Hearing: 14, 15, 16 and 17 October 2019

By: Justice G.A. Andrée Wiltens

Counsel: Ms M. Taiki for Public Prosecutor

Mr R. Kapapa with Mr. R. Willie for the Second Defendant (both absent)

Mr G. Takau for the remaining Defendants (absent)

Date of Sentence: 20 February 2020

SENTENCE

1. Facts
   

1. This case involves a series of criminal acts by a group of people who are associates or relatives of Paul and Hellen Hocten. Only some of those involved have been charged – another has left Vanuatu and several have returned unidentified to Tanna Island. Further, not all the charges laid were proved, and indeed one defendant avoided being convicted of any of the offending.
   
2. The background to the offending involves matrimonial discord. Mr Jean Luc Tevi was the de facto partner of Hellen Hocten. They have four children together. Shortly prior to this incident it was discovered that Mr Tevi was having an affair with another woman, Ms Florence Regenvanu. Hellen Hocten sought assistance from the Chiefs at Namba 2 Lagoon which resulted in a meeting at which the Chiefs instructed Mr. Tevi and Ms Regenvanu to stop seeing each other.
3. However, Hellen Hocten remained dissatisfied and asked her brother Paul Hocten and his wife Janet Hocten to arrange for a further meeting not involving the Chiefs.
   
4. As a result, on 18 October 2018, Ms Regenvanu went to work at Teouma as usual at around 5am. On arrival there she was kidnapped by Hellen Hocten, Lolita Sumsum, Gloria Violet and Tom Violet. Ms Regenvanu was ordered to get into a truck belonging to Paul Hocten and she was taken to Mr Tevi’s home. (Charge1)
   
5. On the way there, Ms Regenvanu was assaulted by Hellen Hocten in the form of slaps to her face, and hits and kicks to her body. (Charge 5)
   
6. In the meantime, another group went off in another of Paul Hocten’s trucks to Mr Tevi’s home. The group included Harry Johnson as the driver, Gloria Violet his wife, and four others from Tanna. They ordered Mr Tevi and numerous other Tevi relatives into the truck under threats of violence. One of those put into the truck was forced to take along a 1-month old baby. (Charge 2). Janet Hocten gave the orders, along with her husband, for this to occur. (Charge 3)
   
7. The two vehicles went more or less in convoy from Mr Tevi’s home firstly to Namba 2 Lagoon and then later to a property belonging to Paul and Hellen Hocten at Erakor Half Road. That meant that others were also involved in the kidnapping of Ms Regenvanu, for the latter part of the time – namely Hellen Hocten, Lolita Sumsum, Hellen Violet and Johnson Harry. (Charge 2)
   
8. On arrival at Erakor Half Road, Ms Regenvanu and Mr Tevi were dragged from their respective vehicles. Mr Tevi and his relatives were made to initially sit and observe.
   
9. Hellen Hocten then assaulted Ms Regenvanu with a stick, pushed her to the ground and sat on her squashing her against broken up coral. (Charge 6)
   
10. Lolita Susum joined in and hit Ms Regenvanu in the face. (Charge 7)
    
11. Shortly thereafter Paul and Janet Hocten arrived. They were offered chairs to sit in while they observed. Janet Hocten set about assaulting Ms Regenvanu, using a piece of timber until it broke. Ms Regenvanu was hit on the head and backside. (Charge 5). Janet Hocten then invited the other defendants and their associates to join in the general assault on Ms Regenvanu (Count 4).
    
12. Janet Hocten then sought out a machete which she gave to Hellen Hocten. Hellen used it to cut Ms Regenvanu’s hair (Charge 9), and to cut all her clothes off her so that Ms Regenvanu was left naked (Charges 14 and 16).
    
13. Hellen Hocten took the belt of a kava grinder and used it to repeatedly assault Ms Regenvanu. At Hellen’s invitation Janet Hocten joined in with that assault. (Charge 11) Ms Regenvanu was hit in the face, to the head, to her back and on her hands. Every time she attempted to run away she was dragged back by the defendants.
    
14. Shortly thereafter, again at Hellen Hocten’s invitation, Tom Violet walked up to Mr Tevi and assaulted him. A relative of Mr Tevi was also assaulted. The four men from Tanna joined in with this attack. (Charge 12)
15. Hellen Hocten and Janet Hocten joined in too. They assaulted Mr Tevi with a machete, a piece of wood and a belt. (Charge 11). Mr Tevi’s resultant injuries were found to be:
    
    • − 3cm laceration at the top corner of his right eye;
    • − Multiple abrasions on the back;
    • − Ecchymosis (black eye);
    • − Periorbital oedema and subconjunctival haemorrhage; and
    • − Abrasion to the left shoulder.
      
16. Hellen Hocten also used a piece of wood to assault A. Rolland and J. Runa, relatives of Mr Tevi. (Count 13).
    
17. At one point, Hellen Hocten took Ms Regenvanu, who was naked, to sit on a chair. Hellen Hocten took a ripe papaya and attempted to insert it into Ms Regenvanu’s vagina. (Charge 19). As she had no success with that endeavour, instead Hellen Hocten rubbed the ripe papaya on Ms Regenvanu’s vagina, all over her body and then against her face (Charge 20).
    
18. While in the chair Ms Regenvanu was also further assaulted by Janet Hocten and Hellen Hocten using an iron rod and the kava grinder belt to attempt to hit Ms Regenvanu’s vagina. They held her legs apart in order to do so. (Charge 17).
    
19. A medical report indicates that Ms Regenvanu’s sustained bruising and laceration from head to toe, but mostly to her back. Her face and other parts of her body were swollen.
    
20. The whole episode came to an end upon the arrival of the police. Mr Tevi and Florence were then taken, covered in blood, to hospital. There is no evidence as to how long either was detained there.
    
21. A number of the defendants gave statement to the police, in which some of the offending was admitted. All the defendants were additional charged with unlawful assembly (charge 21), apart from Johnson Harry.
    
    2. Charges and Pleas
       

22. Hellen Hocten was charged with the following criminal offences to which she pleaded guilty:

1 & 2: Kidnapping – maximum sentence: 10 years imprisonment.

5, 6, 9, 10, 11, & 13: Intentional Assault – maximum penalty: 5 &13: 1 years imprisonment; and the remaining charges all 5 years imprisonment.

14: Malicious Damage to Property – maximum penalty: 1 year imprisonment.

16, 17 & 20: Act of Indecency without consent – maximum penalty: 7 years imprisonment.

19: Attempted Sexual Intercourse without consent – maximum sentence: Life imprisonment.

21: Unlawful Assembly – maximum penalty: 3 years imprisonment.

23. Janet Hocten was charged with the following criminal offences to all of which she pleaded guilty save for charge 17 – she was convicted of that charge after trial:

3 – Aiding & Abetting kidnapping – maximum sentence: 10 years imprisonment.

4 – Inciting or Soliciting Intentional Assault – maximum sentence: 5 years imprisonment.

8, & 11 – Intentional Assault – maximum sentence: 5 years imprisonment.

17: Act of Indecency without consent – maximum penalty: 7 years imprisonment.

21 – Unlawful Assembly – maximum sentence: 3 years imprisonment.

24. Lolita Sumsum was charged with the following criminal offences, to which she pleaded guilty:

1 & 2 – Kidnapping – maximum sentence: 10 years imprisonment.

7 – Intentional Assault – maximum sentence: 5 years imprisonment.

21 – Unlawful Assembly – maximum sentence: 3 years imprisonment.

25. Hellen Violet was charged with the following criminal offences, to which she pleaded guilty:

2 – Kidnapping – maximum sentence: 10 years imprisonment.

21 – Unlawful Assembly – maximum sentence: 3 years imprisonment.

26. Gloria Violet was charged with the following criminal offences, to which she pleaded guilty:

1 & 2 – Kidnapping – maximum sentence: 10 years imprisonment.

21 – Unlawful Assembly – maximum sentence: 3 years imprisonment.

27. Johnson Harry was charged with the following criminal offence, to which he pleaded guilty:

2 – Kidnapping – maximum sentence: 10 years imprisonment.

28. Tom Violet was charged with the following criminal offences, to which he pleaded guilty:

1 & 2 – Kidnapping – maximum sentence: 10 years imprisonment.

12 – Intentional Assault – maximum sentence: 5 years imprisonment.

21 – Unlawful Assembly – maximum sentence: 3 years imprisonment.

29. None of the pleas were entered at the first opportunity. Some were offered at the commencement of the trial, others immediately following completion of the Prosecution’s opening address, and yet more after a prima facie case to answer had been found.
    

100. Sentence Start Point
     

30. The “wronged woman” Hellen Hocten is clearly the most culpable of the defendants. However, she at least had the excuse of being wronged by Mr Tevi, and to a lesser extent, Ms Regenvanu. The other defendants had no business in getting involved. Janet Hocten was heavily involved on the misguided basis of assisting her sister. The others were given instructions by Paul Hocten and Jane Hocten, and were not acting of their own volition.
    
31. Paul Hocten was fortunate that he evoked such fear that there was no admissible evidence produced against him. However, he and Janet obviously considered themselves to be of higher rank than the Chiefs who had interceded to attempt to resolve the issues. They resorted to taking the law into their own hands, and instructed others to join in.
    
32. The kidnappings for the purpose of exacting revenge resulted in the detention of the complainants for several hours duration. It was carried out by numerous persons, and was well planned and executed. That behavior enabled the further offending to follow, much of which was very humiliating and degrading; and it involved repeated gratuitous violence with weapons, as well as sexual offending.
    
33. I take the kidnappings and the aiding and abetting of kidnapping, as the lead offences. I set the start point for sentence in respect of that offending only at 3 years 6 months imprisonment. I see the offence of unlawful assembly being part and parcel of the kidnappings.
    
34. For the other offending there must be significant uplifts imposed due to the nature of the charges and the criminal culpability involved.
    
35. On that basis, I consider the appropriate sentence start point for each of the defendants is:
    

Hellen Hocten – 7 years imprisonment

Janet Hocten – 5 years imprisonment

Lolita Sumsum – 4 years imprisonment

Hellen Violet – 3 year 6 months imprisonment

Gloria Violet – 3 years 6 months imprisonment

Johnson Harry – 3 years 6 months imprisonment

Tom Violet – 4 years imprisonment.

35. In my view the most important sentencing principles are (i) to hold the defendants accountable for their actions and the impact their offending has had on the complainants; and (ii) to deter the defendants and others within the community from acting in this way in future.
    

4. Mitigation
   

36. Pre-Sentence Reports for only some of the Defendants have seen prepared. They were called for on 17 October 2019, and again on 13 December 2019 and 21 January 2019. On those same dates I also called for reparation reports and victim impact statements – none of this information has been provided. However, I am not prepared to wait longer – sentencing should occur as close to the time of offending as possible.
    
37. Hellen Hocten is 26 years old, living in a de facto relationship with 4 children aged between 4 and 11 years. She is unemployed but works occasionally part time for her brother in exporting kava products. She has no previous convictions. She claims to be remorseful. She was involved in a custom reconciliation ceremony being arranged, but the complainants refused to participate.
    
38. Ms Hocten’s parents have both passed away. She has support only from her brother Paul Hocten. Given the seriousness of the charges and the inevitable incarceration he will no doubt need to provide further support for Ms Hocten’s young children.
    
39. For Hellen Hocten’s personal factors I reduce the sentence start point by 8 months. For her pleas, I further reduce the sentence by 20 percent. The end sentence that Hellen Hocten needs to serve is one of 5 years imprisonment. I impose that term on charges 1 and 2, as well as charges 19 and 20. In respect of all the other charges she faces, I impose sentences of 12 months imprisonment. All the sentences are to run concurrently. The sentences are to commence on 18 February 2020 to reflect the time Hellen Hocten has already served.
    
40. There is a Pre-Sentence Report for Janet Hocten, delivered to me this morning. Counsel’s submissions deal with her personal circumstances only briefly. She is 36, married with 9 children. She runs the family Kava exporting business due to her husband’s health concerns. I accept she has no previous convictions, and note that she now claims to be remorseful. I accept she was involved in the attempted custom reconciliation ceremony. I acknowledge also that she suffers from diabetes. Janet Hocten’s personal circumstances enable the sentence start point for her to be reduced by 3 months. The main reason for that lesser reduction is that she is responsible for several of her and her husband’s employees/relatives to end up in Court as co-defendants.
    
41. Janet Hocten’s guilty pleas entered at the stages they were, and bearing in mind that she was convicted on Charge 17, enable a further reduction of only 15 percent.
    
42. The end sentence I impose for Janet Hocten is one of 4 years imprisonment. I impose that in respect of charges 3 and 7. In relation to her other charges I impose sentences of 12 months imprisonment on each. All the sentences are to run concurrently. She too has already served 2 days in prison, and accordingly her sentences are to run from 18 February 2020.
    
43. Lolita Sumsum’s Pre-Sentence Report advises that she is 30 years old in a de facto relationship with three children aged between 2 and 7 years of age. She is currently 7 months pregnant. Her partner is gainfully employed with the Vanuatu Broadcasting Television Corporation. I accept she has no previous convictions and became involved only to assist her sister Hellen Hocten. She too was a party to the attempted custom reconciliation ceremony.
    
44. The start point for Lolita’s offending is to be reduced by 9 months for her personal circumstances and in recognition that she was involved only in order to assist her sister. I further allow a reduction of 20 percent for her guilty pleas, bearing in mind when they were entered.
    
45. The end sentence I impose for Lolita Sumsum’s offending is 3 years imprisonment. I impose that in relation to charges 1 and 2. In respect of her other charges, I impose a sentence of 12 months imprisonment on each charge. All the sentences are to be served concurrently, and they are to run from 18 February 2020 to reflect time already spent in prison.
    
46. I will deal with the next 3 defendants on the same basis as their culpability is similar. There is no Pre-Sentence Reports for Johnson Harry. Counsel’s submissions do not deal with his personal circumstances. However I accept that he has no previous convictions, and was involved only because he was so instructed by Paul and Janet Hocten. The Pre-Sentence Report for Hellen Violet, again only delivered this morning, indicates that she is 47, and is married to Johnson Harry. They have three children. She became involved due to concerns of her niece. I note she has diabetes, and has no previous convictions. The PSR for Gloria Violet, received just this morning, indicates she is 42 years old, married to Tom Violet and they have 5 children. She too has no previous convictions and claims to now be remorseful. All three were also to be involved in the custom reconciliation ceremony.
    
47. I reduce the sentence start point for each of these defendants by 8 months, for their personal factors. For their pleas I allow a further 20 percent reduction from the sentence start points.
    
48. Accordingly, Hellen Violet, Gloria Violet and Johnson Harry are each to serve an end sentence of 2 years 8 months imprisonment. I impose that term for each of charges 1 and 2 where appropriate. I impose sentence of 12 months imprisonment for each on charge 21. The sentences are to run concurrently from today.
    
49. Lastly, I deal with Tom Violet. His Pre-Sentence Report indicates he is 43, married with five children. He has no previous convictions and claims to now regret his actions. He was a party to the planned custom reconciliation ceremony. He too claims he was involved due to his concerns for his niece.
    
50. His personal factors merit a reduction from the sentence start point by 9 months. The only mitigation available is by dint of Tom Violet’s guilty pleas. For that I grant a further 20 percent reduction from the sentence start point.
    
51. Accordingly, Tom Violet is sentenced to an end term of 3 years imprisonment. I impose that in of charges 1 and 2. On his other charges I impose a sentence of 12 months imprisonment. All the sentence are to run concurrently from today.
    

E. Other Matters

52. I had anticipated also ordering compensation to the two main complainants. However, on reflection, I have decided against that due to the periods of incarceration that have been ordered. It would be wrong to both incarcerate and compel large sums of compensation to be paid.
    
53. I have considered whether or not any or all the sentences imposed should be suspended, in whole or in part.
    
54. I do not consider that suspended circumstances are warranted in the circumstances of this case. To do so would undermine the important sentencing principles referred to earlier, namely (i) to hold the defendants responsible for their criminal conduct and the harm caused to the complainants; and (ii) the necessity to impose deterrent sentences.
    
55. Finally, I have had regard to parity of sentencing. The end sentences imposed properly reflect, in my view, the appropriate level of incarceration for each defendant.
    
56. All the defendants have 14 days in which to appeal these sentences.
    

DATED at Port Vila this 20^th day of February, 2020
BY THE COURT

...........................
G. A. Andrée Wiltens
Judge