Supreme Court
SENTENCE
A. Introduction
1. Mr Jimmy pleaded guilty to 1 charge of possession of firearm without a firearms licence (Count 4). After trial, he was convicted of:
• 1 count of threat to kill (Count 3);
• 1 count of domestic violence (Count 5); and
• 1 count of intentional assault (Count 6).
B. Facts
2. The following is a summary of the facts, from the Verdict dated 26 August 2020:
• On 21 December 2019, Mr Jimmy after hitting his wife and spouse Ms Jimmy, intentionally indirectly threatened to kill her by pulling a gun on her from under their bed.
• Mr Jimmy committed domestic violence and intentionally assaulted his spouse Ms Jimmy by slapping her in 2011 and on 21 December 2019, by hitting her body numerous times inside their house causing her to lose strength to the point that she urinated on herself.
3. The gun that Mr Jimmy pulled on Ms Jimmy was a .22 long Rifle model 802, made in Brazil that he unlawfully possessed without a firearm licence.
C. Discussion
4. The maximum penalties for the offending are:
• Threat to kill – 15 years imprisonment;
• Domestic violence – 5 years imprisonment or VT100,000 fine or both;
• Intentional assault causing no damage/injury – 1 year imprisonment; and
• Possession of firearm without a firearms licence – 6 months imprisonment or VT20,000 fine or both.
5. There are several aggravating factors:
• Breach of trust;
• The offending occurred in the home where the victim was entitled to be safe and protected;
• The offending was premeditated and planned;
• The use of a weapon in the threat to kill; and
• The level of force used in the assault, resulting in the victim urinating on herself and fearing for her life.
6. There are no mitigating aspects of the offending.
7. The maximum penalties for this offending and the factors above require a global sentence start point of 15 months imprisonment.
8. Mr Jimmy’s guilty plea to one charge has not saved the Court time nor the victim the ordeal of giving evidence. The remainder of the charges on which Mr Jimmy is sentenced today were convictions entered after trial. A guilty plea deduction is not warranted.
9. Mr Jimmy is 31 years old, a mature man. He is not a first time offender and has experienced imprisonment for a conviction of unintentional harm causing death. An uplift of 1 month imprisonment is added to the sentence start point.
10. Mr Jimmy has 2 children with Ms Jimmy. He makes a living from driving a bus. Mr Jimmy has performed a custom reconciliation ceremony to Ms Jimmy and her families involving 18 kg rice, 1 local rooster, 1 mat, 20 yards of calico and VT25,000 cash. I deduct 3 months for Mr Jimmy’s personal factors.
11. Mr Jimmy is not a first time offender so a deterrent sentence is required. The sentence is also to hold Mr Jimmy accountable for his conduct, to protect his wife and the community, and to denounce the criminal conduct.
12. I held in the Verdict dated 26 August 2020 that Ms Jimmy’s affairs with other men is not an unlawful act for the purpose of the defence of provocation. Therefore that defence was not made out. Despite defence counsel’s sentencing submissions, it is also not a mitigating factor that Mr Jimmy was angered by his wife’s actions. I reiterate that a wife’s extra-marital affairs are no excuse for her husband to commit violence against her. Disagreements will arise in any relationship but violence is not the answer.
D. End Sentence
13. Taking all of those matters into account, the end sentences imposed concurrently are:
a. Domestic violence (Count 5) 1 year 1 month imprisonment;
b. Intentional assault (Count 6) 1 year imprisonment;
c. Threat to kill (Count 3) 1 year imprisonment; and
d. Possession of firearm without a licence (Count 4) 3 months imprisonment.
14. The sentences are to commence on 21 September 2020 due to Mr Jimmy’s time in custody from 21 December 2019-28 February 2020 and since 18 January 2021.
E. Suspension
15. Condign punishment is required to fulfil the sentencing purposes of denunciation of the criminal conduct, deterrence of Mr Jimmy and others, to protect Ms Jimmy and the community and to hold Mr Jimmy accountable for his actions. In the circumstances involving serious offending, Mr Jimmy’s previous conviction and within the context of domestic violence, I decline to exercise my discretion to suspend the sentence.
16. The firearm seized by the Police is to be destroyed.
17. Mr Jimmy has 14 days to appeal this sentence if he disagrees with it.
DATED at Port Vila this 21st day of January 2021
BY THE COURT
………………………………………….
Viran Molisa Trief
Judge