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Public Prosecutor v Kalia [2008] VUSC 32; Criminal Case 7 of 2008 (3 April 2008)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Held at Isangel, Tanna)

CRIMINAL CASE No.07 OF 2008

PUBLIC PROSECUTOR

-v-

KAUAS KALIA

Mr Bernard Standish for Public Prosecutor
Mr Jacob Kausiama for the Defendant

SENTENCE

This is the sentence of the defendant, Kauas Kalia. Mr Kauas, you are charged with the offence of Threat to kill a person, Contrary to Section 115 of the Penal Code Act [CAP 135], and on 1st April 2008, you pleaded guilty as lalleged.

The brief facts show as follows:-

On 8th July 2007, at Lounahuru Village in Tanna, you threatened to kill Iakuo Pailet ("the Complainant").

The Complainant is your father’s brother. The complainant is your uncle.

In the morning of 8th July 2007, the complainant was attending to one of his pigs when you approached him asking "who dug our kava". At the time you approached, you were holding a natora in one hand and a bush knife in the other hand.
You said:

"Tedei mbae mi killim you ded long place ia"

When you made the threat to kill, you attempted to whip the complainant with the natora and to cut him with the bush knife. The complainant was able to avoid the weapons and was not injured.

A reconciliation was attempted, but no resolution was completed.

This is a very serious case. Section 115 of the Penal Code Act [CAP 135] is the offending section. The maximum penalty provided under this section is 15 years imprisonment.

The prosecution submitted that the case of Walker –v- Public Prosecutor, Criminal Appeal case No. 06 of 2007 provide the appropriate guide line.

In the case of PP -v- Kell Walker, Criminal Case No.20 of 2007, the Court held:

"Cases of this nature must always warrant imprisonment sentence to reflect the seriousness of the offence. For offence of threats to kill a person, by a defendant with presence of weapon and the use of the weapon is on the higher scale of aggravation and seriousness. A suspended sentence of imprisonment must be only granted if the circumstance of the case justified".

In their summary of submissions, the prosecution invite the Court to pass a sentence of imprisonment against you in line with the guide line approach taken in the case of Walker.

Your Counsel told the Court that you are 31 years old. You are married with 3 children and 2 are in school. You are a first time offender. You have no previous conviction. You pleaded guilty at the first opportunity given to you.

Your Counsel told the Court that you are committing this offence on the same week after the passing away of your father. The circumstance as explained by your counsel is that after the death of your father, you place some Namele leaves on your father’s heads of kava to prohibit someone from taking them. You, then, found out that one of the kava was dug out by Complainant. You were upset because the Namele Leaves were removed and thrown away by the complainant. You were upset and angry you then approached the complainant and you committed the offence as alleged.

Your Counsel told the Court that the Court must distinguish your case from the case of PP v. Kell Walker when the Court considers the appropriate sentence on you.

Your Counsel submitted that the circumstances of your committing the offence was that you are affected by the loss of your father, you place Namele leaves on your father’s kava for the purpose of some custom ceremonies. You found out the complainant dug one head kava, and removed the Namele Leaves and threw them away so you were upset and angry and committed the offence. Your Counsel submitted that the Court to pass a sentence of imprisonment and to suspend it.

The prosecution in their reply to your Counsel’s submissions, agrees with what your Counsel says.

They say the case of Walker is different. Walker came to this jurisdiction to terrorize a man who is supposed to be killed.

The prosecution says you were angry. You would have still been affected by the death of your father so you did what you did but it is a wrong thing.

There is an issue of dug of kava. There is another way to go about and not take the law into your own hands. The prosecution submits that the Court imposes a sentence of imprisonment and suspended it, the prosecution would not argue with it. The prosecution wishes the Court also to consider the provisions of Supervision Order under Section 58G of the Penal Code (Amendment) Act No.14 of 2007.

I have taken all that your Counsel says on your behalf into consideration.

I apply the guideline approach in the case of PP -v- Kell Walker referred to earlier and apply it in your case.

The appropriate sentence is 2 years and 6 months imprisonment. I consider whether I should suspend the sentence. I assess the circumstance of your offending, your personal situation at the time of offending warrant a suspension. I make an Order to suspend your imprisonment sentence of 2 years and 6 months for a period of 2 years.

In addition, I impose on you a Supervision Order for a period of 6 months for your rehabilitation and reintegration back into the community; and

I order you to perform a Community Work for a period of 1 year (200 hours).

The above sentence is made under the provision of Section 58G of the Penal Code Amendment Act No.14 of 2007.

14 days to appeal.

DATED at Isangel, Tanna this 3rd day of April 2008

BY THE COURT

Vincent LUNABEK
Chief Justice