Samson v Public Prosecutor
JUDGMENT
Introduction
1. This is a short appeal against the sentence of 15 months imprisonment which was not suspended, imposed by the Magistrate on 17th February 2026.
2. The sentence has been stayed pending the determination of the appeal.
Background Facts
3. The Appellant was initially charged with five counts of domestic violence. In the Magistrate Court, he pleaded guilty to the charges in Count 1 and Count 5.
4. For the charge in Count 1 the Appellant in the afternoon of 21st June 2025 punched his girlfriend’s head then threw her to the ground and took a dry piece of bamboo attempting to spear her with it, causing fear for her safety.
5. For the charge in Count 5, the appellant on 16th August 2025 at 3-4 O’clock in the morning again punched his girlfriend on the right eye and her forehead resulting in an open wound.
6. The appellant pleaded not guilty to the charges in Counts 2, 3 and 4. The charge in Count 2 related to the assault on her by the appellant occurring in the afternoon of 22nd June 2025. The charge in Count 3 related to the assault on the complainant on 12 July 2025. And the charge in Count 4 related to the assault on the complainant in the night of 8 August 2025.
7. On the plea date Prosecutions entered nolle prosequi pursuant to section 29 of the Criminal Procedure Code Act [Cap 136] and the appellant was acquitted of those three charges.
The Sentence
8. The Magistrate having recorded that the appellant had accepted the facts, convicted the appellant on both Counts based on his guilty pleas.
9. In sentencing the appellant, the Magistrate took into account the following aggravating features:
• Serious breach of trust.
• Seriousness of the offence
• The offence being committed in a public place.
• The repetition of the offences without provocation.
• The temporary injuries sustained.
• The victim as a vulnerable person.
• The appellant taking advantage of the victim’s vulnerable state of being intoxicated.
• The offending being repeated.
• The psychological and emotional harm of repetitive assaults.
• The humiliating effects on the victim being assaulted in front of her relatives.
10. The Magistrate further recorded that there was no mitigating circumstances for the offending but taking into account four mitigating factors such as early guilty plea, being a first-time offender with clean past record and the four days spent in custody, set the start sentence at 2 years imprisonment.
11. The sentence was reduced by 33% for early guilty plea. A further reduction of 2 months was made for his personal factors, leaving the end sentence to be 15 months imprisonment.
12. The Magistrate did not suspend the sentence and said:
“ in the circumstance of the offending, I shall not suspend the sentence. This sentence shall commence on 4th March 2026.”
The Appeal
13. The appellant appeals that sentence on grounds that it is a manifestly excessive sentence, and against it being not suspended.
Issues
14. The issues for determination are:
a) Whether the sentence of 15 months imprisonment is manifestly excessive?
b) Did the Magistrate err by not suspending the sentence?
Submissions
15. At the hearing Mrs Karu argued and submitted that the Magistrate had erred by adopting a start sentence that was at a higher end of the range because the assaults did not result in permanent injures, and that the case being only dealt with summarily. Further Mrs Karu argued that the Magistrate had failed to consider the fact that the appellant was only 19 years old when he committed the first offence, the fact that he and the victim were in a relationship, the fact that he had cooperated with the Police, the fact that he had reconciled and the fact that he had paid hospital fees for the treatments received by the victim and complainant. The failure to consider these factors demonstrated an error in the exercise of her discretion to properly balance the aggravating features with the mitigating factors.
16. Ms Karu submitted that the sentence imposed is inconsistent with the sentence in the case of PP v Shem [2023] VUSC 259 where a start sentence of 3 years was adopted and reduced to 1 year 4 months as an end sentence, suspended for 2 years.
17. Finally, Mrs Karu submitted the Court should apply the principles set out in PP v Barnabas Garae [2025] VUCA 37.
18. Ms Siri for the Prosecution submitted in response the Court should determine the appeal in accordance with the principles set out in the Australian case of R v Sara [2020] NSWCCA 119 which was adopted by the Court of Appeal in Konpikon v PP [2022] VUCA 38 and PP v Barnabas Garae which reaffirmed the decision of Malau v PP [2021] VUCA 48.
19. In relation to the factor of age being 19 and 20 at the time of the commission of the offences, Ms Siri submitted the Court should consider and apply the principles set out by the Court of Appeal in PP v Tulili [2024] VUCA 54.
Discussion
20. First the appellant’s reliance on PP v Shem as a comparative case. In the Court below Mrs Karu did not refer the case to the Magistrate for guidance. Ms Siri on the other hand referred the Magistrate to PP v Nov [2024] VUMC 18 and PP v Saly [2024] VUSC 12.
21. In PP v Nov, a Magistrate sentenced the defendant for one charge of domestic violence to an end sentence of 8 months imprisonment suspended for 2 years. In PP v Saly a Supreme Court Judge sentenced the defendant for three charges of domestic violence to a start sentence of 2 years, 8 months’ imprisonment, reducing it for mitigating factors to an end sentence of 2 years imprisonment. The sentence was not suspended.
22. Ms Siri submitted in the Court below a start sentence of 2 years and 8 months. Counsel did not submit that the sentence be suspended but acknowledged the Magistrate’s discretion to suspend the sentence pursuant to Section 57 of the Penal Code Act and submitted that if the Magistrate was minded to suspend the sentence, that a fine of between VT10,000 to VT20,000 be imposed with costs of VT2,000. Alternative she submitted a sentence of community work for 60-80 hours be considered.
23. Mrs Karu submitted a start sentence of 18 months imprisonment with suspension. She submitted the following mitigating factors: the defendant’s cooperation and admission, him being a first-time offender, his arrest and the night spent in Cell 6, the 4 days spent at the Correctional Centre and the reconciliation and the payment of hospital fees by the appellant. She submitted a 1/3 reduction for guilty plea and a further reduction of 4 months for mitigating factors.
24. At the hearing Mrs Karu submitted the Magistrate failed to consider the mitigating factors in her balancing exercise with the aggravating features and that omission meant an error was demonstrated.
25. From the Notes of the Magistrate, it is apparent the Magistrate had considered PP v Nov and PP v Saly and she applied the latter to not suspend the sentence. Further it is apparent she had balanced the aggravating features against the mitigating factors at [8] of the sentence in adopting the start sentence of 2 years imprisonment. Then at [11] she considered “the circumstance of the offending” to decide not to suspend the sentence.
26. It is apparent the Magistrate did not include the factors of cooperation, a night spent in cell 6, the reconciliation and the payment of hospital fees in [7] of the sentence, but that did not mean she had not considered them because at [10] the Magistrate made a further reduction of 2 months for his personal factor, which in my view are those other factors not included at [7] as (i), (ii), (iii) and (iv).
27. In PP v Garae the Court of Appeal was mindful of the caution expressed in the earlier case of Konpikon v PP. In that case the sentencing judge had refused to suspend a sentence given the seriousness of the offending. It was argued that the Judge had not taken into account the mitigating factors but the Court of Appeal found that was not the case. At [10] of the Judgment the Court said:
“In his remarks identifying mitigating factors the Judge illustrated he was well aware of the many of the factors also relevant to suspension. There was no need for the Judge to repeat these factors when he came to consider suspension, they would have been part of the evaluation exercise he undertook.”
28. Then at [26] of the Garae Judgment the Court of Appeal said:
“We adopt the same approach in this case. The fact that the Judge did not specifically refer to all aggravating factors in paragraphs 21 to 23 of her sentencing notes did not mean she failed to take them into account when exercising the suspension discretion.”
29. Likewise, I also adopt the same approach in deciding this appeal. The real question is whether the Magistrate had considered the factors appropriately, not whether she had used the term “balancing” in her sentencing notes. Furthermore, on an appeal such as this one, I remind myself of the question whether or not I agree with the Magistrate, rather it is whether an appealable error has been made. The case of Malau v PP [2021] VUCA 48 supports these views.
30. I accept that the correct test in assessing whether the sentence in this case is manifestly excessive is established in Naio v PP [1998] VUCA 1 and in Skinner v R [1913] 13 CLP 336 at 340 where it was said:
“An appellate court considering a sentence of appeal should not determine that a sentence was manifestly excessive or manifestly inadequate unless that was obvious, such as where the sentencing Judge had acted on a wrong principle or had clearly overlooked, undervalued, over estimated or misunderstood some salient features of the evidence.”
31. At the hearing I asked Mrs Karu about whether there was any evidence put before the Magistrate that a reconciliation was made and whether payment of hospital fees were paid by the appellant? The answer was in the negative. That may explain why the Magistrate did not include those factors with the four factors in paragraph 7 of her sentence.
32. I also accept the Case of R v Sara [2023] NSWCCA 119 as good law. This case sets out seven principles to be taken into account when assessing whether a sentence imposed was “unreasonable or plainly unjust” as follows:
(a) Sentencing is a discretionary judgment and there is no single correct sentence.
(b) A Court of Criminal Appeal must not substitute its own opinion merely because it would have exercised the sentencing discretion differently to the sentencing judge.
(c) Judges at first instance are to be allowed as much flexibility as is consonant with the application of proper principle and consistency of approach.
(d) The weight to be given to the various factors to be taken into account (including the evidence and various purposes of sentencing) is a matter for the sentencing judge.
(e) Although the Court of Appeal is not bound by the sentencing judge’s assessment of objective seriousness, the Court should be very slow to form its own view.
(f) Whether or not manifest error has occurred is not “fundamentally intuitive.” What reveals manifest inadequacy is a consideration of all of the matters that are relevant to fixing the sentence.
(g) Reviewing a history of sentencing can establish a range of sentences that have in fact been imposed. However, that history does not establish either that (i) that range is the correct range, or (i) that the upper or lower limits to the range are the correct limits. They are only a yardstick against which to examine a proposed sentence.”
33. I adopt and apply those principles in determining this appeal.
34. In regard to the age of the appellant being 19 and 20 years old at the times of offending, these factors do not assist the appellant. The capacity to rehabilitate does not negate the need for accountability. The case of PP v Tulili supports this view. The Magistrate had this in mind in exercising her discretion not to suspend the sentence.
35. Finally, the case of PP v Shem does not assist the appellant. It differs on its facts and circumstances. And the case of PP v Garae does not assist the appellant’s case but the Prosecution.
Conclusions
36. The end sentence of 15 months imprisonment is within range and is not manifestly excessive. The sentence of the Court below is upheld.
37. No error has been demonstrated in the exercise of discretion of the Magistrate not to suspend the sentence.
38. The appeal is dismissed. The stay order is lifted and the sentence of 15 months is immediately effective as of today, but backdated to 4th March 2026.
DATED AT Port Vila this 5th day of June 2026
BY THE COURT
Hon. Justice Oliver A Saksak