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Public Prosecutor v Malsokley [2007] VUSC 91; Criminal Case ... of 2007 (22 August 2007)

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

CRIMNAL CASE No. OF 2007

PUBLIC PROSECUTOR

-v-

NORBERT MALSOKLEY,
TIMOTHY MALSOKLEY AND
MICHEL MALSOKLEY

Editor's note: case number is unavailable.

Coram: Justice Hamlison Bulu

Counsels: Leon Malantugun for the State
Jacob Kausiama for the Defendants

Date of Hearing: 27 July 2007
Date of Judgment: 22 August 2007

SENTENCE

INTRODUCTION

This is the sentence of the three Defendants namely Norbert Malsokley, Timothy Malsokley and Michel Malsokley. They were charged with the offence of intentional homicide contrary to Section 106(b) of the Penal Code Act [CAP.135].

All the Defendants pleaded not guilty to the charge and the matter went to trial on Lakatoro, Malekula. On 29 June 2007, the Court found them guilty of the offence of intentional homicide.

Section 106(b) of the Penal Code [CAP.135] provides as follows:-

"(1) No person shall by an unlawful act or omission intentionally cause the death of another person.

(b) If the homicide is premeditated, imprisonment for life.

(2) For the purpose of subsection (1), premeditation consists of a decision made before the act to make a homicidal attack on a particular person or on any person who may be found or encountered."

This is a very serious offence on our statute book. It carries a maximum penalty of life imprisonment.

This is a sad case in which a young man, in his prime, lost his life in circumstances that could have been avoided.

FACTS

There is a history of dispute between the Malsokleys and the Maleres of Walla Rano, North East Malekula over ownership of certain land at Walla Rano.

On 6th August 2005 Norbert Malsokley returned to his village after spending the night on the small island of Walla. On his way home he noticed that some one had uprooted some young banana trees that were planted in Timothy Malsokley’s garden, a very close uncle of his. He went directly to his uncles home and reported the incident and wanted to know who is the person responsible. His uncle told him that Malere family is the one responsible for causing all the damages in the garden. Norbert then went to the home of Michel Malsokley and told him of the incident.

On 9th August Michel went to see Norbert and they had a long talk. On returning from his garden Timothy joined them and they talked about the damages caused to their garden by the members of Malere family. Norbert then left for the garden.

On his way he saw the deceased in the cattle fence near the property. He ran home and told Michel and Timothy about the deceased. They all went back to where Norbert had seen the deceased. They approached him with stealth and the deceased did not see them until they were on him and began to assault him. Norbert had come up behind the deceased and put his hands around the deceased’s body and pinned the deceased’s hands to his body so that the deceased could not free them. Michel and Timothy assaulted him by punching and squeezing his neck. They then carried the deceased to a pig sty nearby. By the time they arrived at the pig sty he was already dead. Timothy then used one end of the rope the deceased had to tie it around the deceased’s neck and the other end to one of the posts for the pigs sty. The rope was pulled tight to an extent that the deceased’s head and the upper part of his body were raised off the ground to give an appearance that he had hanged himself.

SENTENCING

The law is section 106 (b) of the Penal Code Act which I have referred to earlier in this decision.

The following are elements of the charge:-

(a) there was a death;
(b) the death was caused by the Defendants;
(c) the death was a result of an unlawful act;
(d) the act was a premeditated act in that before carrying out the act of killing the Defendants had decided to make a homicidal attack on the deceased.

The facts show that all three Defendants approached the deceased with stealth and purpose. They caught him by surprise. Norbert had pinned the deceased’s hands to his body and could not be used to defend himself. Michel and Timothy assaulted him. Timothy held his neck and squeezed it to prevent the deceased getting air in his lungs. When they took him to a pigs sty nearby and put him down, the deceased was already dead.

The offence committed by the Defendants is a very serious offence in this country attracting the maximum term of life imprisonment. The value of a human life cannot be measured. A life has been lost, a family is without one of its members and it cannot be replaced.

The following cases were referred to the Court:

PP v. Gideon Massing & Others – CRC 68/05
PP v. Kalopat - CRC 08/87
PP v. Iakis & Ors – CRC 42/94

The seriousness of this case warrants an immediate custodial sentence for all the Defendants.

It is their plan. They all carried out the plan. Each helped the other one in ensuring that the objective, the taking of a life, is achieved. This is a brutal and barbaric act. I take into account what the Courts have said in this area.

In sentencing each and all the Defendants I take into account what the Defendants’ counsel says in respect of each one, in particular, the destruction of their homes, gardens and everything that they had possessed in retaliation for the death. That however, does not affect the serious nature of the offence they have committed.

Timothy Malsokley is 54 years old. The oldest of the three Defendants. It is clear on the facts that he is regarded as their "smol Dadi", and clearly in the circumstances of this case, he commanded some authority over his two other close family members. He should have shown to the other two family members a good example of how to resolve a dispute in a community without recourse to taking away the life of a young man in his prime. He squeezed the deceased neck long enough to suffocate him and he passed away immediately thereafter.

Timothy Malsokley, I sentence you to a term of 17 years imprisonment. The period already spent in custody is deducted. That leaves a balance of 16 years 10 months.

Norbert Malsokley, I sentence you to a term of 14 years imprisonment. The period already spent in custody is deducted. That leaves a balance of 13 years 10 months.

Michel Malsokley, I sentence you to a term of 14 years imprisonment. The period already spent in custody is deducted. That leaves a balance of 13 years 10 months.

DATED at Port-Vila, this 22nd day of August, 2007

BY THE COURT

Hamlison BULU
Judge.