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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)
Held at Isangel, Tanna
Criminal Case No 113 of 2010
PUBLIC PROSECUTOR
-v-
BRUNO NEPREI
& 52 other Defendants
Coram: Chief Justice Vincent Lunabek
Counsel: Mr Tristan Karae for the Public Prosecutor
Mr Kiel Loughman for the Defendants
Date of hearing: 15 February 2011
Date of Judgment: 16 February 2011
SENTENCE
This is the sentence of 42 Defendants. 6 Defendants who were involved in the same criminal case, entered guilty pleas in the Supreme Court in Port-Vila. They were convicted as charged on 10 February 2011 and shall be sentenced on 24 February 2011 at 2.00pm o'clock. On 15 February 2011 following Defendants: Iakei Naus, Naus Namten, Netai Kwaten, Jack Katawa, Nakur Loughiauma, Amos Iauhua, Andrew Iauhua, John Iauhua, Jimmy Iaruel, Karae Pasua, Kapia Rokono, Charlie Ioram, Napang Navi, Jack Mawa, John Kutpauta, David Namatau, Namatau David, Katawa Nitai, Remmy Rouawus, Timothy Ianakel, Iau Urpei, Rino Napip, Tuta Tom, Willie Nakou, Kasua Naus, Naus Kuenkirkir, Jimmy Lency, Naupir Repah, Ronies Quapitana, Sam Nakau, Naiwa Rose, Tomake Ianakel, Wahai Wahai, Albert Tangap, Jimmy Nahu, Jerry Peter, Kausir Nauka Peter, Konpiken Amos, Kalahi Harry, Melen Ishmael and Jerry Iaput, entered guilty pleas and convicted on:
Defendant Yauhua Lounako entered guilty pleas and convicted on:
The facts of this case are set out by the prosecution. The defence counsel agrees and accepts them on behalf of the Defendants. They are reproduced as follows:
On 23rd September 2008, Digicel representatives and representative of people from Envitana including people of Envitana had a meeting. The purpose of that meeting was to reach an agreement for Digicel Company to build a telecommunication tower at Envitana area, South West Tanna. After the meeting, the people of Envitana including their representatives agreed and signed an agreement then Digicel started to build the tower.
After the agreement, some of the Defendants, especially Bruno Neprei, Chief Yauhua Lounako and Chief Narwie expressed their thinking on the basis of some "custom road". They held several meetings with the idea to pull down the Digicel tower.
On 22nd January 2009, Chief Johnson Kuana of Ikakaha Village called on people from Envitana area to have a meeting as he was then informed that Bruno Neprei, Chief Iauhua and Chief Narwie wanted to pull down Digicel tower. Chief Johnson Kuana sent Chief Nipiko to get Bruno Neprei, Chief Lounako and Chief Narwie to attend the meeting. They refused to attend the meeting. So after several attempts, Chief Johnson sent 7 men to call on Bruno Neprei, Chief Lounako and Chief Narwie to attend the meeting and say why they wanted to pull down the Digicel tower.
Bruno Neprei, Chief Lounako and Chief Narwie agreed and attended the meeting. Chief Johnson chaired that meeting. During the meeting, Bruno Neprei, Chief Lounako and Chief Narwie said they were going to pull down the tower and they gave one week to Digicel Boss to respond because they said that the Digicel tower was built on "Tabu" place. But Digicel did not respond.
Later on sometime on 1st of February 2009, there was a big meeting taking place at Iekuirvang village. The purpose of the meeting was for the Defendants to plan as to how they were going to pull down the Digicel tower. During the discussions, Chief Yauhua and Chief Narwie told other Defendants as to who and how some of the Defendants would remove the posts, the fence and the bolts on the foundation of the tower so that the tower could fall on the ground. After the meeting of 1st February, the Defendants spent the night in the nakamal. On 2nd February 2009, the Defendants assembled together and marched up toward the location of the Digicel tower. Chief Johnson was informed that Chief Yauhua and Chief Narwie lead the Defendants to the location of the tower. Then Chief Johnson sent messages to get police assistance at Isangel police station and he also contacted Digicel Company in Port-Vila about the situation. The police went to the place the tower was built. The police tried to reason Chief Iauhua and Chief Narwie not to damage the tower. The Defendants did not listen to the police and the number of the police officers on the field were outnumbered and they left.
After that the police officers left, the Defendants took firewood and coconut leaves and throw them at the foundation of the tower and also around engine box of the tower. The Defendants then removed the fences, dug the posts of the fences. At the same time, other Defendants removed bolts at the foundation of the tour. The Defendants then took a rengin wire of the tower and they fastened it on a tree and they pulled on it. Once all bolts were removed, the Defendants pulled on the rengin wire and the Digicel tower fell on the ground. When they pulled the tower down on the grounds, the Defendants shouted and climbed on the tower.
After they pulled the tower down on the ground, the Defendants made a big custom dance ceremony. During that custom dance ceremony, chief Yauhua Lounako and Chief Narwie lead the Defendants to the nakamal. There, Chief Narwie made custom payment with kava and food to the Defendants for the work they have done by pulling the Digicel tower down on the ground.
The complainant in this case filed an assessment report showing the total loss of equipment and recollection of the tour. The total loss was about USD256,516 which is equivalent to 23,000,000 Vatu.
On 9th February 2009, police started the investigation in the matter and after caution, they interviewed the Defendants and the Defendants made statements admitting their involvements in the incident.
The provisions of the law you have broken are set out below:
"When three or more persons assembled with intent to commit an offence, or being assembled with intent to carry out some common purpose, conduct themselves in such a manner as to cause nearby persons reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such assembly needlessly and without any unlawful assembly."
Section 69 of the Penal Code Act prohibits unlawful assembly and it states:
"No person shall take part in an unlawful assembly.
Penalty: Imprisonment for 3 years."
"No person shall willfully and unlawfully destroy or damage any property which to his knowledge belongs to another.
Penalty: Is set out in section 36(3) of the Interpretation Act [CAP.132] which provides that:
Where an Act of Parliament omits to prescribe a penalty for an offence created by the Act or for a contravention of a provision of the Act the penalty shall be a fine of VT5,000 or imprisonment for 1 year or both."
The third is the offence of Soliciting and Inciting the Commission of an offence which is prohibited by sections 35 and 133 of the Penal Code Act [CAP.135]. Section 133 of the Penal Code Act has been referred to above. Section 35 of the Penal Code Act says:
"It shall be unlawful to incite or solicit another person to commit any offence, whether or not that offence is committed. A person guilty of inciting or soliciting an offence may be charged and convicted as a principal offender."
Penalty: [Is set out in section 36(3) of the Interpretation Act [CAP.132] which is "5,000VT or imprisonment for 1 year or both."
In considering your sentencing, I peruse and consider the submissions of the Public Prosecutor and submissions made by your defence counsel on behalf of each and all of you before the Court today at Isangel, Tanna. I have enquired from your counsel about the possibility of pre-sentence reports for each of you but they are dispensed with as your lawyer provided very detailed information on your personal history, your antecedents and matters of mitigation on behalf of each of you to assist the Court in your sentencing exercise.
The prosecution refers the Court to the case of Public Prosecutor v. Jimmy Niklam & others, Criminal Case No.04 of 2004. Briefly, on 6 July 2004, the people of Vanuatu went to the polls to cast their votes in a snap election called by the Government of Vanuatu. Mr Jimmy Niklam and Mr Iaris 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 were announced on the national radio on 8th July 2004. The unofficial results showed that both Mr Niklam and Mr Naunun failed to secure a seat in the National Parliament. On 9 July 2004, the election coordinators with the assistance of the police transported the ballot boxes for the constituencies of Tanna and Tafea outer Islands to White Grass Airport. The Defendants, encouraged by their leaders, also went to the Airport and seized 4 boxes, broke them on the road and burned the voting cards, and all other documents. The cards and other contents are the properties of the Government of Vanuatu. The defendants were charged with the offences of unlawful assembly, contrary to section 69 of the Penal Code Act, Malicious Damage to property, contrary to section 133 of the Penal Code Act and Soliciting and Inciting the commission of the offence of Malicious Damage to property, contrary to sections 35 and 133 of the Penal Code Act [CAP.135]. They were sentenced to 24 months imprisonment for unlawful assembly; 10 months imprisonment for malicious damage to property and 10 months imprisonment for soliciting and inciting the commission of the offence of Malicious Damage to property. The Court suspended the imprisonment terms for a period of 2 years and ordered that they will run concurrently.
The prosecution submits that the Court should apply the rational of sentencing in the case of PP v. Jimmy Niklam & others, Criminal Case No.04 of 2004 and in addition, order you to perform 200 hours community work.
In the present case, your offending and the circumstance of your offending are very serious offending. They are aggravated by the following factors exist:
On your behalf, your lawyer submitted to the following effect:
Removal of tower:
Your lawyer informed the Court that you do not deny the fact that you are responsible for the removal of the Digicel Communications tower (hereinafter the tower) at Envitana area in South Tanna. In removing the tower you were not saying you oppose the services provided by Digicel, although that's how your actions have been interpreted by the members of the public.
Prior to the tower being built on the land, there were not full consultations with the chiefs of the area. When Defendant Bruno Neprei (in Vila) heard the tower was to be built on the site, he actually went up to Digicel Officer to talk to the people responsible. He was told the person responsible was out of the office. He requested to see Iama Natuka, a Ni-Vanuatu employed by Digicel but there was no response. He later on met with that employee, Mr Iama Natuka, and conveyed his concern and that of the Defendants to him to inform the Digicel Office. There was no response.
Alternative site
Your lawyer also informed the Court that Defendants Iauhua Lounako and Bruno Neprei suggested an alternative site still at Envitana to build the tower. That site was not taken.
Decision to remove tower
Your lawyer informed the Court further that a meeting was held sometime in January 2009 during which time it was decided that the tower would be removed. The decision to remove the tower was collective.
Your lawyer finally informed the Court and submitted as follows:
Matter in mitigation:
Reconciliation
Relocation of tower
You are very much aware that your actions have costs Digicel a lot of money. You can never repay that money but hope a new relationship can be fostered between your community and Digicel as the service provider.
On your sentencing, your lawyer refers the Court to the following cases:
The circumstances of the above cases arose out of concerns of the custom of local people and their practices as they are in direct conflict with the criminal laws of Vanuatu. In Manlaewia and Maripopongi cases, the disputes were over rules of customs as to who should be the paramount chief. The Niklam case was about the execution of Orders issued in custom by the custom chiefs and leaders. The present case is about the concerns by one part of the local community of Envitana area to protect and preserve their traditional site which culminated in unlawful actions committed by the Defendants out of frustrations and as reactions to the refusal of their proposed site.
Your lawyer submitted that in the light of the above cases, the appropriate sentence that the Court should pass on each and all of you for your offending should be a suspended custodial sentence.
In the present case, I have considered the prosecution submissions and submissions of your lawyer and all what your lawyer informed the Court about on your behalf. I have also perused and considered the relevant provisions of the law and the case authorities provided by the prosecution and your lawyer, I must inform each and all of you that your offending constitute very serious offences which attract custodial sentence. It appears that your unlawful actions were carried out as a result of your frustrations, lack of understanding and communication, reactions after you realized that your proposed site to build Digicel tower was refused and that the tower was built on your traditional site you use for special custom ceremonies.
In sentencing each and all of you, the Court must inform you that Vanuatu as an independent and sovereign nation has laws for everyone including each and all of you. As citizens of Vanuatu, each and all of you and your chiefs, you are subject to the laws of Vanuatu. Each and all of you must understand that you cannot take the law into your own hands to do justice to yourselves out of frustrations, reactions, misunderstanding and lack and/or poor communications.
Your custom motives or custom rationals may be the basis of your actions. However, your custom and practices are not excuses for each and all of you to commit criminal offences as you did on 2 February 2009 when you were unlawfully assembled together, maliciously damaged the Digicel tower causing its fall on the ground with the encouragement and incitement of some of your custom chiefs and leaders. Your offending resulted in substantial losses of VT23,000,000 to Digicel and one part of Tanna Island people could no longer have access to their mobile phone communications. This has far reaching effect on the telecommunications and economic developments on Tanna and Vanuatu.
Custom chiefs and leaders shall refrain from soliciting and inciting their people to commit criminal offences out of frustrations and reactions using their custom and practices as justifications for the breaking of the criminal laws of the Republic of Vanuatu.
In the present case, I have balanced the aggravating factors with the mitigating factors and after I have cross referenced each with the other, I sentence each and all of you in this way:
ORDER FOR SENTENCE
DATED at Isangel, Tanna this 16th day of February 2011
BY THE COURT
Vincent LUNABEK
Chief Justice
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