Public Prosecutor v Warsal

SENTENCE 

Introduction 

1.    Donavan Warsal pleaded guilty to a single charge of intentional assault. Having accepted the summary of facts he now appears for sentencing on that charge. 

2.    The maximum penalty for the offence of intentional assault where damage is of a permanent nature is 10 years imprisonment.

The facts

3.    On 3 December 2024 the defendant and his friends planned to have their Christmas party at Hour beach at the blue hole at Suranda. At that time the defendant had consumed alcohol and became very drunk. Some girls followed the defendant and his friends to Hour beach.

4.    The defendant was in a drunken state when he punched the victim Glen Bruce on his jaw and the victim fell to the ground. While still lying on the ground the defendant then kicked the victim with his leg. This resulted in the victim losing two of his teeth.

5.    The defendant’s actions caused permanent injury to the body of the victim. The nature of the injuries were highlighted in the victim’s medical report.

Starting point of sentence 

6.    The starting point of sentence is set by taking into account any aggravating or mitigating factors of the offending with reference to the maximum penalty. The maximum sentence available is 10 years imprisonment. There are no mitigating factors of the offending.

7.    A number of factors stand out as aggravating factors of the offending namely the use of excessive force, the attack was unprovoked, and the victim was hospitalized with permanent injuries.

8.    The prosecution submits a starting point of 4-5 years’ imprisonment. They referred to Tari v PP [2011] VUCA 26 where the Court of Appeal acknowledged that where an assault involves unprovoked violence resulting in permanent injury an immediate custodial sentence was warranted even if the defendant is a first-time offender.

9.    A few cases were referred to by the prosecution as comparable cases to the current case. In PP v Garae [2024] VUSC 272 the victim was kicked in the face and suffered a fractured jaw. The starting point of sentence imposed was 4 years imprisonment. The end sentence was 2 years imprisonment suspended for 2 years. Next was PP v Mansen [2026] VUSC 139.  In that case the victim also suffered a broken jaw after being kicked in the face by the defendant. The starting point of sentence was 4 years and 4 months imprisonment. The end sentence was 23 months and 6 days. The sentence was not suspended.

10.    Defence counsel referred to PP v Quaga [2018] VUSC 163 which involved the use of a knife to cut the victims arm and to cut off the tip of the victim’s right index figure. The starting point applied was 5 years imprisonment. The end sentence was 18months imprisonment suspended for a period of 2 years.

11.    The factual circumstances of that case are more serious than the current case as a weapon was involved. The second case referred to was PP v Lopez [2018] VUSC122. The case also involves the use of knife in a threatening manner which is factually different to the current case.

12.     It was submitted that the starting point of sentence should be 2 years imprisonment and the end sentence should be suspended.

13.    I have considered the submissions and cases referred to by Counsel. The factual circumstances of the cases referred to are different in each case, hence some end sentences have been suspended in cases of intentional assault where injury is of a permanent nature.

14.     I set the starting point of sentence at 4years imprisonment.

Personal factors

15.    The defendant pleaded guilty at the first available opportunity as a sign of remorse. The sentence start point is therefore discounted by 33 %.

16.    A Same Day Report was filed by the Probation officer revealing personal details about the defendant. The defendant is now 19 years old. At the time of the offending, he was 17 years old. He is a third child out of 4 children.  He is a first-time offender and originates from Port Olry but currently resides at the Banban area. He is unemployed and relies on his parents to sustain his livelihood. He left school at Year 11 in 2025. He hopes to one day earn his living as a farmer. He told his probation officer that he intends to say sorry to the victim for his actions.

17.    Taking these factors into account I reduce the sentence start point by 6 months.

End sentence 

18.    The defendant is sentenced to an end sentence rounded off to 2 years imprisonment. When considering whether I should suspend the sentence, I note that the defendant is a teenager and is also a first-time offender taking these factors into account I will suspend the sentence pursuant to s57 of the Penal for a period of 2 years.  Within the period of 2 years if he reoffends, the sentence will be reactivated to be served in custody.

19.    I also impose a supervision order for 6 months with a special condition that the defendant undertake the Anger Management Module under the Victim Awareness Program to be directed by his probation officer. In addition, the defendant will also perform 80 hours of community work.

20.    The defendant has 14 days to appeal if he is not satisfied with the decision.

   
DATED at Luganville, Santo this 18th day of September, 2026

BY THE COURT

………………………
Dudley Aru
Judge