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Public Prosecutor v Whitford [2007] VUSC 82; Criminal Case 42 of 2005 (3 August 2007)

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

Criminal Case No. 42 of 2005

PUBLIC PROSECUTOR

-v-

GABILOU WHITFORD

Coram: Justice H. Bulu

Counsels: Mr. Lent Tevi for the State
Mr. Peter Bartels for the Defendant

Date of Hearing: 1 December 2006
Date of Decision: 3 August 2007

RESERVED JUDGMENT ON SENTENCING

Introduction

1. Defendant Gabilou Whitford you were charged with one count of premeditated homicide contrary to section 106 (b) of the Penal Code Act [CAP. 135}. The particulars of the charge were that sometime on 25 May 2005 in the area of Tebakor Christian School, in the night, you had intended to kill Willy Philemon.

2. You pleaded not guilty to the charge on 8th July 2005.

3. Trial was set down to commence at 8.30 a.m. on 17 October 2005 and to run for 3 weeks. Due to overlap with another criminal trial, the trial was postponed to 13 March 2006 but the length of time was reduced to two weeks only.

4. On 13 March 2006, the Defence counsel applied and obtained an adjournment on the basis that he was not ready to proceed with the trial. Matter was listed for call over on 15 March.

5. On 15 March 2006, the trial was listed to commence on 21 August for one week only. These were vacated and new trial dates were set for 30 October for one week.

6. On 1st August 2006, new trial dates were set again for the matter to commence on 27 November 2006 for one week.

7. On 27 November 2006, the Prosecution amended the charge against you. The amended charge now reads:-

“Count 1

Statement blong wrong

Intentional Assault causing death – agensem section 107 (d) blong Penal Code Act [CAP. 135]

Particulars blong wrong

GABILOU WHITFORD, you blong Tongoa island mo stap liv long Port Vila, samtaem long 20 May 2005 long Tebakor area, you minim blong assaultem man ia Willie Philemon mekem sei kil hemi kassem hemi result long ded blong hem.”

8. Section 107 (d) provides as follows:-

“No person shall commit intentional assault on the body of another person. Penalty; (d) if the damage caused results in death, although the offender did not intend to cause such death, imprisonment for 10 years.”

9. You pleaded guilty to the new charge on the same day (27 November 2006) at the first opportunity given to you by the Court.

10. Sometime in April 2005, you and the deceased performed a custom ceremony acknowledging the growing relationship between the deceased and your step daughter to restrain the two seeing each other for a little while. After the ceremony the deceased and your step daughter continued to see each other, secretly, contrary to the agreement made at the custom ceremony.

11. On the night of 20 May 2005, the deceased and your step daughter met at the Tebakor Junior Secondary School. When you realized that your step daughter was not at home you went searching for her. You found the deceased at the school and enquired about your step daughter. The deceased informed you, in fact deceived you, that he had not seen her. Later on you found your step daughter with the deceased and guessed that the deceased had lied to you earlier. You became very angry and you had a fight but the deceased had the upper hand in that fight and you walked away shouting for help.

12. When you went looking for your step daughter you had a piece of wood about a meter long in your possession.

13. The deceased and your step daughter remained in the school a little while but on realizing that they were being hunted, they made their way across the road near the TVL depot and hid in a bush near Job Esau’s yard. They were discovered however. Your step daughter was taken away and the deceased was assaulted. You turned up and assaulted the deceased on his head and body with a piece of wood. The deceased fell down under the blows and appeared to be dead. He was unconscious and some men carried him down to the road unconscious and waiting to be transported to the hospital, you assaulted him again on his head with a piece of wood you were holding.

14. At the hospital Dr. Richard Harris examined the deceased and pronounced him dead. He was covered in blood from the injuries he sustained to his head. He had lost his front teeth, he had no respiratory effort, no pulse, and his pupils fixed and dilated.

Aggravating features

15. The Prosecution submitted that the aggravating features are:-

(a) The Defendant had a piece of wood;

(b) The Defendant hit the victim with the piece of wood several times on his head, face and body; and

(c) As a result of the assault the victim died.

Mitigating features

16. You agree with the facts. Your counsel submitted on your behalf that this case must be distinguished from that of Malesu Criminal Case No. 9 of 2001 in which it was held that in disputed cases the starting point ranges from 8 – 10 years. This is not a disputed case.

17. Counsel continued that you do not have prior criminal history. Further you are:-

• 35 years old with two children of the first marriage;
• A first offender;
• Sorry for what you did; and
• You entered a guilty plea on the new charge at the first opportunity.

18. On Application by your counsel on your behalf a pre-sentence report was ordered and produced to the Court.

Considerations

19. Mr. Gabilou, this Court has heard from the Public Prosecutor and your defence counsel as to what should be the appropriate sentence in your case. You are a man of 35 years of age or so. You are an adult who should know or be able to understand what is right and what is wrong.

20. The facts in this case, are not disputed. They are summarized as follows. On 22 May 2005 you went looking for your step daughter armed with a piece of wood about 1 meter in length. When you found your step daughter with the victim you assaulted him because he had lied about the girl’s whereabout earlier when you had caught up with him. The victim overpowered you and you went away calling for help. Others answered your call and went looking for the deceased. Why were you looking for him with the other men?

21. You have made your intentions known to him already when you assaulted him, because he breached the arrangement made that they cease to see each other for a while, and secondly, in deceiving you earlier that evening when he told you that he had not seen your step daughter.

22. When you caught up with him you joined the others to assault the victim. You did not assault him with your bare hands but with a piece of wood you had with you. You repeatedly hit him on his head and body.

23. As a result of such blows he became unconscious and was taken to the main road. Those who had taken him to the road were intending on taking him to the hospital for a medical check-up and treatment.

24. While he was lying by the road unconscious you turned up and again hit him on his head with the piece of wood you had in your hand.

25. The aggravating features are:-

(a) You went looking for him intent on causing him bodily harm. You carried a piece of wood with you.

(b) You had a fight with him. He overpowered you. You called for help while walking away from him.

(c) Other persons responded. You caught up with him, you hit him on the head (back and front) and generally on his body. And he became unconscious.

(d) While he was unconscious, not moving at all, lying by the road you turned up and applied several blows again to his head with a pieced of wood you had in your hand. You assaulted a man no longer able to defend himself.

26. What you did that night, in my view, went beyond the concept of “teaching him a lesson” for engaging in a relationship with your step daughter and further for not telling you the truth that your step daughter was with him on the ill fated night.

27. You are fortunate that Prosecutions has decided to withdraw the charge of premeditated homicide under section 106 (b) of the Penal Code Act [CAP. 135]. What you did on that night is most serious indeed and senseless. The deceased was already unconscious, and lying by the road. He could not defend himself. Yet you turned up and hit him several times on his head with the wood.

Sentence

28. I have considered the guideline judgment case of PP v. Joseph Malesu. It is not relevant to this case as this is not a defended case. However, the aggravating features are such that the starting point, in my view, has to be 7 years. It is increased to 10 years. One third is taken off for your guilty plea. One month is taken off for the other mitigating features. Another 2 years 2 months and 5 days already served is taken off also.

29. Mr. Gabilou, I now sentence you to an immediate custodial sentence for a term of 4 years 8 months and 3 weeks.

30. I have considered the pre-sentence report made on your character and personal history by the Probation Officer dated 15 May 2007. The report suggests that the offence was committed out of frustration and anger because the victim continued to have a relationship with your daughter.

31. It continued that you have shown remorse for the offending and willing to perform a custom ceremony. During the time you have spent in custody, you have shown a lot of improvement in your behaviour. The report went on to recommend a community based sentence of supervision with a special condition to perform a custom ceremony within 7 months to the relatives of the victim.

32. Section 58F and 58K of the Penal Code Act [CAP. 135] are the relevant provisions I have been urged to consider and apply to award you a community based sentence of supervision. Such a sentence can be imposed if the sentence is for a period of not less than 6 months and not more than 2 years in custody. As such, this sentencing option cannot apply in your case as the custodial sentence imposed on you to day does not fall within the period prescribed by section 58F.

33. You may appeal this decision within 14 days of today if you are not happy with it.

DATED at Port Vila, this 3rd day of August, 2007.

H. BULU
Judge.