Public Prosecutor v Nicklam [2005] VUSC 6; Criminal Case 004 of 2004 (14 February 2005)

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

Criminal Case No. 04 of 2004

PUBLIC PROSECUTOR

-v-

JIMMY NICKLAM
& OTHERS

Coram: Justice Hamlison Bulu

Counsels: Mr. John William Timakata for the Public Prosecutor
Mr. Jacob Kausiama for the Defendants
Mr. Ishmael Kalsakau for the Defendants

Date of Hearing: 14th February 2005.
Date of Judgment: 14th February 2005.

JUDGMENT

INTRODUCTION

1. On 6^th of July 2004 the people of Vanuatu went to the polls to cast their votes in a snap election called by the Government headed by Prime Minister Edward Nipake Natapei.
   
2. Mr. Jimmy Nicklam and Iarris Naunun, both of Middle Bush, Tanna contested the elections for a seat each in the National Parliament. The unofficial results of votes cast in Tanna was announced on the national radio on 8^th July 2004. The unofficial results showed that both Mr. Nicklam and Mr. Naunun had failed to secure a seat in the National Parliament.
   
3. On 9^th July 2004 the co-ordinator for snap election 2004 for the Tanna constituency and the Tafea outer islands constituency with the Police were transporting the ballot boxes for the two constituencies to the White Grass International Airport. At that time, encouraged by their leaders the defendants also went to the Airport and seized 4 ballot boxes, broke them on the road, and burned the voting cards, and all other contents. The cards and the other contents are properties of the Electoral Office and the Government of Vanuatu.
   

CHARGES

4. The accuseds were arrested and charged with the following offences:-
   
   • (a) Unlawful Assembly contrary to section 69 of the Penal Code Act [CAP. 135]. It carries a maximum penalty of 3 years imprisonment.
     
   • (b) Terrorist Act contrary to section 73 B (c) of the Penal Code Act [CAP. 135]. It carries a maximum penalty of 25 years imprisonment.
     
   • (c) Inciting and Soliciting Commission of Terrorist Act contrary to sections 35, 73 B (c) of the Penal Code Act [CAP. 135]. It carries a maximum penalty of 25 years imprisonment.
     
   • (d) Obstructing Police Officer on Duty contrary to sections 30 and 73 A of the Penal Code Act [CAP. 135] – maximum penalty is
     
5. On 14^th February 2005 the charges were amended and the defendants are now charged with the following offences:-
   
   • (a) Unlawful Assembly contrary to section 69 of the Penal Code Act [CAP. 135].
     
   • (b) Malicious Damage to Property contrary to section 133 of the Penal Code Act [CAP. 135].
     
   • (c) Inciting and Soliciting Commission of Malicious Damage Property contrary to sections 35 and 133 of the Penal Code Act [CAP. 135].
     
6. Charges against some of the accuseds were also withdrawn. The Public Prosecutor only proceeded against Iarris Naunun, Bob Natiang, Chief Sanga Samuel, David Nipiknam, John Noka, Charlie Nihimelin, Sul Ezra, Jimmy Nakau, David Tef, Failet Kawiel, Chief Kasso Robert.
   

PLEAS

7. Bob Natiang, Iarris Naunun, Chief Sanga Samuel, David Nipiknam, John Noka, Charlie Nihimelin, Sul Ezra, Jimmy Nakau Tabi, David Tef and Failet Kawiel pleaded guilty to the offence of Unlawful Assembly contrary to section 69 of the Penal Code Act [CAP. 135]. It carries a maximum penalty of 3 years imprisonment.
   
8. Bob Natiang, David Nipiknam, John Noka, Charlie Nihimelin, Sul Ezra, Jimmy Nakau Tabi, David Tef and Failet Kawiel pleaded guilty to the offence of Malicious Damage to Property contrary to section 133 of the Penal Code Act [CAP. 135]. It carries a maximum penalty of 12 months imprisonment or a fine of VT5,000 or both.
   
9. Iarris Naunun, Chief Sanga Samuel, John Noka, Bob Natiang, and Chief Kasso Robert pleaded guilty to Inciting and Soliciting Commission of Malicious Damage to Property contrary to sections 35 and 133 of the Penal Code Act [CAP. 135]. It carries a maximum penalty of 12 months imprisonment or a fine of VT5,000 or both.
   

SENTENCING

10. The Deputy Public Prosecutor has informed the Court that the Police have no record of previous conviction by any of you. Further that you have complied with your bail conditions.
    
11. The Deputy Public Prosecutor has also asked the Court to impose a sentence on each of you that is appropriate to the circumstances of your case. He went on to say that the Court must consider the following to determine what is an appropriate sentence:-
    
    • (a) Law exist for everyone. It is not right and proper to take the law into our own hands. There is a way to follow to resolve our frustrations.
      
    • (b) Circumstances in which some of you are in are based in custom authority. Court should impose a sentence that will deter everyone in the community to not take the law into their own hands. He went on to say that such sentence should also be a tool to educate citizens in the rural community on existing laws.
      
    • (c) Following the circumstances of your case the appropriate sentence would be a custodial one but suspended. The sentence to be suspended following the Suspension of Sentences Act. During the period of suspension you must not commit the same or any other offence. If you do so, you will be taken in to custody to serve your sentence that was suspended.
      

A suspended sentence would be the appropriate sentence due to the strong custom being adhered to by all of you. You live in an environment where Chiefs wield authority over you. Some of you are under the authority and care of your chiefs. A suspended sentence should deter others and be seen to be educational as well at the same time.

It is a one time offence.

12. Mr. Kausiama on your behalf, have submitted the following to the Court in mitigation:-
    

(a) You are all simple village people. All of you are married with children.

(b) You have no previous criminal records.

(c) To date you have cooperated with the Police. You have pleaded guilty at the first opportunity the Court has given you. This is an indication of remorse and contrition. You apologize to the people of Tanna and Vanuatu for your actions on the 9^th of July 2004.

(d) On 9^th July 2004 when you committed the offences some of you did not know that. You did not know that your actions were unlawful. Many of you are not well educated. You have heard the word “law” but have no concrete idea about what it means. You miss out in knowing and understanding national laws passed by Parliament. This is because no body comes to you to explain these laws.

(e) Hearing in this matter is one important one for you as it is an educational exercise for you, the people of Middle Bush and everyone attending the hearing. To day you will learn to understand that what you did was unlawful and that you will not repeat such actions.

(f) The Court to impose a sentence that is proportionate to the offence. The appropriate sentence would be a suspended sentence.

13. Mr. Kalsakau also on your behalf made the following submissions:-
    
    • (a) The Court must take your circumstances into account. It must look at the social context you live in that determines your thinking and actions.
      
    • (b) You were not happy with the results of the snap election held on 6^th July 2004. Seen in that context it is an isolated incident. It is not like stealing which can be habitual in nature.
      

What happened was spontaneous. That you have tried to deal with it in the way your custom dictates (which the law does not recognize). He submitted that you abide by your custom and that it influences everything that you do.

(c) A suspended custodial sentence would be an appropriate sentence in your circumstances. If you do not commit any offences within the suspension period your record can be made good again after the relevant period has lapsed.

DISCUSSIONS

14. You have all pleaded guilty to the offences you have been charged with. Unlawful assembly attracts a maximum penalty of 3 years imprisonment. The other offences attract penalties of 1 year imprisonment or a fine of VT5,000 or both.
    
15. What you did on 9^th July 2004 was unlawful. You have destroyed property belonging to someone else. That someone else is the Government of the Republic of Vanuatu.
    
16. I have taken into account the good things that counsels on your behalf have submitted to this Court. You cooperated with the Police, you pleaded guilty at the first opportunity, you complied with all your bail conditions, and that you are sorry for what had happened. You apologize to the people of Tanna and Vanuatu.
    
17. You live in a community which is regulated mainly by customary laws; your customary laws. The guardians and enforcers of the customary laws are the chiefs in your community. The Court has been told that only a very small percentage of the people do get out of your community for further education and employment in the main centres.
    
18. The Court has also been told that what occurred on 9^th July 2004 is in accordance with your customs. In line with such customs that approach is practiced and reconciliation takes place after such an event.
    
19. Custom and culture can be very valuable to us in giving us values and identities. However, not all that is done or practiced in the name of custom is good either. Those aspects can cause us to be seen in bad light by others.
    
20. Article 95 (3) of the Constitution, the supreme law of this country, declares that custom continues to be part of the laws of this young nation. That article, in my view, must be read together with Article 5 of the Constitution (fundamental rights) to see the proper position of custom in Vanuatu today. Amongst other things, that article calls for respect for others and their properties, and their protection. Customs of different communities in Vanuatu today must be seen in this light. The custom of Middle Bush is no exception to this.
    
21. Both the Prosecution and your own defence counsels have submitted to this Court that you live in a community where custom is strong and you carry out the wishes of your chiefs in accordance with that custom.
    

SENTENCE

22. What would be the appropriate sentence in your circumstances.
    
23. I have taken into account what the Deputy Public Prosecutor has submitted and what your counsels have submitted on your behalf and consider a suspended custodial sentence to be the appropriate sentence in your circumstances.
    
24. In relation to count 1, considering your guilty plea and the other mitigating factors my view is that 24 months would be the appropriate sentence. Bob Natiang, Iarris Naunun, Chief Sanga Samuel, David Nipiknam, John Noka, Charlie Nihimelin, Sul Ezra, Jimmy Nakau Tabi, David Tef and Failet Kawiel, I sentence you to 24 months in imprisonment.
    
25. In relation to count 2, considering your guilty plea and the other mitigating factors, my view is that 10 months imprisonment would be the appropriate sentence. Bob Natiang, David Nipiknam, John Noka, Charlie Nihimelin, Sul Ezra, Jimmy Nakau Tabi, David Tef and Failet Kawiel, I sentence you to 10 months imprisonment.
    
26. In relation to count 3, considering your guilty plea and the other mitigating factors, my view is that 10 months imprisonment would be an appropriate sentence. Iarris Naunun, Chief Sanga Samuel, John Noka, Bob Natiang and Chief Kasso Robert, I sentence you to 10 months imprisonment.
    
27. The sentences imposed on you today are concurrent.
    
28. Given the particular circumstances of your case the sentences are suspended for a period of two years. Two years starting today you must be on good behaviour. If anyone of you commits the same offence, or any other offence, you will be arrested and taken into custody to serve the sentences imposed on you today. What you did was unlawful and it must not happen again. We have come along way. We are now at the age where reasoning power and dialogue must be the way forward but not actions like those you took on 9^th July 2004 and for which you are being sentenced today.
    

DATED at Isangel, this 14^th day of February 2005.

H. BULU
Judge.