Public Prosecutor v Moli [2012] VUSC 129; Criminal Case 19 of 2011 (5 July 2012)

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

Criminal Case No. 19 of 2011

PUBLIC PROSECUTOR

VS.

KALFAU MOLI
CALISTO CEVUARD
JOEL PAUL
SILAS ROCROC
DAVID WILSON ROTUL
JANSEN MOLI
KALWAR ROCROC
LULU ROCROC
JACOB ROCROC
NICOLSON KATH
MALON WILLIAM
REX WARPOCPOC

Mr Justice Oliver A. Saksak

Mr John Timakata for the State
Mr Ronald Warsal for the Defendants

Date of Pleas: 6th July 2011 and 29th March 2012
Date of Sentence: 5th July 2012

SENTENCE

Introduction

1. All the 12 named defendants were charged jointly and severally with two counts of Unlawful Assembly Contrary to Section 69 and of Obstructing Police Officers Contrary to Section 73 A of the Penal Code Act Cap 135 (the Act).

2. The offence of Unlawful Assembly carries a maximum penalty of 10 years imprisonment and the offence of obstructing Police carries a maximum penalty of not exceeding 6 years imprisonment or a fine not exceeding VT300.000.

3. All the 12 defendants pleaded guilty to the two charges when they were re-arraigned on 29th March 2012.

4. The offences were committed by the defendants on 20th May 2011 when the defendants had assembled together at the premises of the Northern Islands Stevedoring Company Ltd (the NISCOL) with intent to obstruct the Police from carrying out their lawful duties.

Background Facts

5. There had been complaints made alleging misappropriation of moneys belonging to NISCOL. Following those complaints, the Police applied for and obtained Search Warrants on 18th May 2012 to search the offices of NISCOL for documents to assist their investigation. A group of Police Officers was assigned for the investigation armed with the search warrant issued by the Magistrates Court in Port Vila. On 20th May 2011, the Police investigators with some uniformed police and Vanuatu Mobile Force (VMF) members entered the NISCOL offices in Luganville for the purposes of executing the search warrant. The leader of the investigating team Det. Chief Inspector George Twomey approached two staff members of NISCOL and showed them the Search Warrant and explained its purpose to them. Subsequently, search had commenced and Mr Twomey left the NISCOL office to attend to the Harbour Masters office. Upon returning, he saw over 100 people standing in the way in front of the NISCOL offices. They were aggressive and hostile. They prevented the officer and his team of investigators from entering the offices of NISCOL. At about 11 O'clock, the officer and his team withdrew. Formal complaints were made to the police and these 12 defendants were arrested, questioned and charged.

Sentencing Based on Facts From Statement

6. Each defendant will be sentenced on the basis of their admissions to the undisputed facts, and on the basis and extent of his involvement in the offendings as revealed by the following statements.

7. The statement of Det. Chief Inspector George Twomey reveals three of the defendants as leaders of the group. These are Kalfau Moli, Wilson David Rotul and Jansen Moli. They led the group and clearly obstructed police in the performance of their duties. Sargent Kalorib's statement confirms this.

8. Senior Sargent Kalorib's statement reveals that David Wilson Rotul was acting aggressively on the date of offending. His statement also reveals that Jansen Moli and Kalwar Rocroc were abusice and acting aggressively. This is confirmed in the statements of police officers Kila Vakumoli, Jeffrey Wimbong, Harris Yoan and Terry Lapenmal. His statement reveals also that Nicolson Kath was present and he was acting aggressively towards police officers.

9. Sen. Sgt. Kalorib's statement also reveals that Joel Paul and William Malon went to join the group and were involved directly in leading the group to stop the police from gaining entry through the main gate. This officer saw Jacob Rocroc, Lulu Rocroc, Silas Rocroc and Calisto Cevuard also among the group who barred their entry through the main gate. At this juncture, one of the defendants said; "Naoia yufala ol Force Members, yufala I shootum mifala."

10. At the time of committing these offences, Joel Paul was occupying the position of President of the Sanma Provincial Council and was a former member of the NISCOL Board of Directors and William Malon was occupying the position of Vice-President. Both remain Councillors. Calisto Cevuard was and is a Councillor of the Sanma Provincial Council and was a former Member of the Board of Directors of NISCOL. Kalfau Moli was the Chief Executive Officer of NISCOL. David Wilson Rotul was the former Chairman of the NISCOL Board at the time of offendings. Silas Rocroc was a former member of the NISCOL Board of Directors at the time of offendings. He is a councillor of the Sanma Provincial Council. Lulu Rocroc was security officer and driver with NISCOL. Nicholson Kath was messenger of NISCOL.

11. It is against those background information that one can easily understand why these defendants and others who supported them had assembled on the date of offending and they did so with intent to carry out some common purpose or if need be, to commit some offences in order to achieve their common purpose. In so doing, it is clear from the facts that the defendants conducted themselves in ways that not only caused police officers to fear for their safety, but also obstructed them in the performance of their lawful duties: that is obstructing Police from enforcing and executing a bench warrant issued by the Magistrate's Court.

Defendants' Statements

12. Out of the 12 defendants, only Joel Paul made a formal statement to the Police. The other 11 defendants acknowledged their rights not to make any statement and indicated they would only talk in Court. That opportunity was not available because all the defendants pleaded guilty as charged.

Pre-Sentence Reports

13. All the defendants were questioned by Probation Officers for the purposes of Pre-Sentence Reports. Each of them have given brief explanations of their involvements and reasons for their involvements or actions. The Court has given considerations to those Pre-Sentence Reports in assessing sentences of the defendants.

Submissions

14. The Court has also considered the written submissions made by the Public Prosecutor and defence counsel.

A. By Public Prosecutor

14.1. The Public Prosecutor submitted that –

(a) From the chronology and facts there was –

• A mass gathering of over 150 persons;

• Threatening and abusive language and gestures towards the Police;

• Violent actions of assaulting Police officers;

• Threat of immediate harm;

• Escalation of potential violent harm and threat of fatal injuries and public disorder resulting in the withdrawal of Police from the Niscol premises;

• Obstruction and prevention of the lawful execution of a search warrant issued by the Court.

(b) Defendants Kalfau Moli, Joel Paul, William Malon and Silas Rocroc all hold positions of leadership and great responsibility within Luganville and Sanma Province and as such were also subject to the provisions of the Leadership Code Act Cap. It is further submitted that these four named defendants not only acted contrary to the Penal Code Act but also contrary to their responsibilities as leaders within the community to lead and act in accordance with the law.

(c) Their actions were deliberate, premeditated and mass-organised for the specific purposes of unlawfully obstructing police officers from discharging their duties to execute a search warrant, and to use threats of violence and abusive language and gestures to cause immediate fear of bodily harm and to cause public disorder by using road blocks to obstruct the police from discharging their lawful duties.

(d) The actions of the defendants were such that they posed real potential for serious violent harm and threat of fatal injuries and breach of public peace and order had the police not withdrawn and retreated.

(e) Defendants Jacob Rocroc, Kalwar Rocroc, Lulu Rocroc and Silas Rocroc have previous convictions.

14.2. It was submitted by the Public Prosecutor that the above features were aggravating features which placed the defendants' offendings on a higher degree which warranted only custodial sentences, but suspended. This would mark the gravity of their offendings and to act as a deterrence and adequate sentences to the defendants. The Public Prosecutor relied on the case authorities of Public Prosecutor v. Silas [1998] VUSC 82 and Public Prosecutor v. Nicklam [2005] VUSC 6 and Public Prosecutor v. Neprei [2011] VUSC 7.

B. By Defendants

15. The Defendants filed written submissions on 13th June 2012 but only on behalf of Kalfau Moli. Submissions on behalf of Calisto Cevuard, Joel Paul, William Malon and Silas Rocroc were filed on 15th June 2012. And further submissions on behalf of all the defendants was filed on 21st June 2012. Submissions on behalf of David Wilson, Jansen Moli, Kalwar Rocroc, Lulu Rocroc, Jacob Rocroc and Nicholson Kath were filed on 14th June 2012. Two sworn statements were filed by Kalfau Moli and Calisto Cevuard on 8th June 2012. Both of these defendants expressed remorse and pleaded for leniency.

15.1. In summary, it is submitted by Counsel on behalf of the defendants that-

(a) They rely on the facts stated in their respective Pre-Sentence Reports.

(b) Fines be imposed as the appropriate sentence for Kalfau Moli, Calisto Cevuard, Joel Paul, William Malon and Silas Rocroc.

(c) In the alternative, that a sentence of supervision and fines be imposed on defendants who are first-time offenders or Community Service for up to 100 hours and fines in respect of the obstructing of police charge. Counsel relies on the cases of Public Prosecutor v. Anderson Nori [2011] VUSC 326 and Public Prosecutor v. Poilapa (1992) VUSC 20. Counsel did not furnish the Court with copies of these cases.

(d) For repeat offenders, except for Silas Rocroc, a suspended sentence in respect to both charges be imposed. Counsel relied on the case of Public Prosecutor v. Jimmy Nicklam & Ors [2004] and Public Prosecutor v. Philip Kating [1995] MC Criminal Case No. 456 of 1995.

(e) There is no shred of fact contained in the statements showing there were over 150 people at the NISCOL premises on 20th May 2012 when the offences were committed.

(f) The Court is urged to take judicial notice of previous NISCOL issues and political power struggles since 2006 that caused headlines in Newspapers and in the Courts.

(g) Previous convictions of Silas Rocroc, Jacob Rocroc, Kalwar Rocroc, and Lulu Rocroc are things of the past and none have re-offended since their last dates of re-offendings or convictions.

Peculiar Facts of Defendants

15.2. Counsel for the defendants submitted the following factors as further mitigating factors –

(a) Kalfau Moli –

• Received a call that Police were at NISCOL premises.

• Went to the premises with Councillor Silas Rocroc.

• Enquired about whether Police had any search warrants.

• People had already gathered there with NISCOL employees and casual workers working on a copra boat who were over at least 50.

• Did not stop Police or threaten, assault, use abusive or threatening language or gestures, was not violent, did not cause threats of immediate harm or case public disorder.

• Did not deliberate, premeditate or organize the group of people at the wharf as most of them were casual workers on the cargo boats at both or employees of NISCOL. From the sworn statement of Kalfau Moli the following mitigating factors are stated –

• Early guilty plea to avoid further waste of Courts time and resources.

• Being a first-time offender.

• Was only concerned as to the Police invading NISCOL premises and not being able to show them a search warrant.

• He is contesting the National General Elections to be held in October 2012. If imprisoned or given a suspended sentence he would not be eligible to run as a candidate.

• He is remorseful about what happened on 20th May 2011 and apologises to both the Court and to the police.

• Despite what happened on 20th May 2011, he is a changed man and intends to move on in life and to contribute in another way towards society particular to Luganville town and intends to become a member of Parliament.

• Pleads for leniency and asks that only fine is appropriate.

(b) Malon William –

• Was not present when Police went to NISCOL premises but was at the meeting of the Sanma Provincial Council.

• Received a call that there was tension between Police and Civilians working at NISCOL.

• Went to NISCOL premises with Joel Paul and Calisto Cevuard and later to the Police Northern Command to try and organize a reconciliation.

• Was advised by Police there was a search warrant.

• Got involved only as a leader to attempt to sort out the tension between the Police and Civilians.

• Went after Police were already at NISCOL premises.

• No intention to cause problems.

• Saw it as a leader in Sanma, it was his duty to resolve dispute or tension between people residing and working in Luganville and those of Sanma Province.

(c) Joel Paul –

• Was not present at the time when Police went to NISCOL premises but was at the Sanma Provincial Council Meeting.

• Received a call that there was tension between Police and Civilians working at NISCOL premises.

• Went with other councillors, Malon William and Calisto Cevuard to Police Northern Command to try and organize a reconciliation ceremony.

• Was advised there was a search warrant.

• Involved only as a leader to attempt to sort out the tension between Police and civilians at NISCOL premises.

• Went to the scene only after Police were already there.

• No intention to cause problems.

• As a leader in Sanma, he saw it as his duty to resolve the dispute or tension between people residing and working in Luganville and those of other provinces.

(d) Calisto Cevuard –

• Was not present at the time Police went to NISCOL premises but was at the Sanma Provincial Council Meeting.

• Received a call that there was tension between Police and civilians working at NISCOL premises.

• Went with other councillors, Malon William and Joel Paul to Police Northern Command to try and organize a reconciliation ceremony.

• Was advised that there was a search warrant.

• As a leader he got involved only to attempt to sort out the tension between Police and Civilians at NISCOL premises.

• Went after Police were already at NISCOL premises.

• No intention to cause problems.

• As a leader, he saw it as his duty to resolve the dispute or tension between people residing and working in Luganville and those of other provinces.

(d) Silas Rocroc –

• Was driving Kalfau Moli who was then CEO of NISCOL at the time. Mr Moli got a call that Police were at NISCOL premises so he drove Mr Moli to NISCOL.

• Did not say a word, use abusive or threatening language or gestures or threats of immediate bodily harm or cause public disorder or organize a massive grouping at the wharf.

• Only his presence led him to be involved.

(e) Rex Warpocpoc –

• Was a casual labourer at the two cargo ships berthed at the wharf at the time.

• Did not do anything but only his presence led him to be involved.

• Was not involved in any threatening or use of abusive language or gestures towards the Police or any violent actions or threats of immediate bodily harm.

(g) Nicolson Kath –

• Was an employee of NISCOL at the time and his presence only led him to be involved.

(h) Jacob Rocroc –

• Is employed at NISCOL.

• Was at work at the time and his presence led him to be involved.

(i) For defendants David Wilson, Jansen Moli, Kalwar Rocroc and Lulu Rocroc, including Jacob Rocroc and Nicolson Kath the following mitigating factors were submitted on their behalf on 14th June 2012-

• They pleaded guilty to avoid waste of Court's time and resources.

• Are first-time offenders.

• Are remorseful for the offences committed.

• Were of NISCOL either for work on the date of offendings which led to their getting involved.

• Have families to take care of.

• Have moved on after the incident on 20th May 2011 at NISCOL premises.

Discussions

16. A. The Law

Section 68 defines Unlawful Assembly as follows –

"1. 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 manner as to cause nearby person reasonably to fear that the persons so assembled with commit a breach of the peace; or will by such assembly needlessly and without any reasonable occasion provoke other persons to commit a breach of the peace, they are an unlawful assembly.

2. It is immaterial that the original assembling was lawful, if being assembled, they conduct themselves with a common purpose in such a manner as aforesaid.

3. When an unlawful assembly has began to execute the purpose for which it assembled by a breach of the peace and to the term of the public, the assembly is called a riot."

Section 69 of the Act states –

"No person shall take part in an unlawful assembly.
Penalty: Imprisonment for 10 years."

Section 73 A of the Act states –

"Any person who obstructs; molest or assaults any police officer in the performance of his public duties shall be guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding six years or to a fine not exceeding VT300.000 or to both such fine and imprisonment."

B. Application Of Law To Facts, Findings And Rulings

16.1. Applying these legal provisions to the facts as contained in the statements of Det. Chief Inspector George Twomey, Senior Sargent Kalorib and the other police officers, it is clear and obvious these 12 defendants –

(a) Had assembled unlawfully,

(b) They had intention to carry out a common purpose.

(c) They carried out that common purpose.

(d) They successfully carried out that common purpose by not allowing the Police to carry out their public duties in executing a lawful search warrant.

(e) They conducted themselves in a manner that caused fear to the members of the police and nearby persons.

(f) They committed a breach of the peace which had the police not retreated or withdrawn, there would have been a riot.

16.2. It was immaterial whether there were 150 persons around, the requirement under Section 68(1) of the Act requires only "three or more persons." The submission by the defence about the numbers is rejected.

16.3. Out of the 12 defendants only Joel Paul cooperated by making a statement to the police on 3rd June 2011. It is important to quote part of the statement as it is in Bislama –

"Long date blong 20 May long time ia we ol Force oli executim wan Kot order blong go long NISCOL. Long time ia mi stap go long office long Province. Taem mi kasem office, Vice President (Malon William) ikam talem long mi se olgeta long NISCOL mo police I wantem luk mi. So mi go taon long NISCOL blong luk olgeta. Taem mi kasem NISCOL mi putum truck long Parking Area. Mi askem long CEO [Kalfau Moli] blong NISCOL "Yufala I wantem luk mi from wanem?" and hemi talem long mi se; "No mi wantem nomo se yufala I kam yumi stap long place ia from ol police oli wantem kam inside." Afta mi wokabaot igo long gate blong traem askem long ol Force [Police] se sipos olgeta I wantem talem wan samting long mi and mi finemaot se olgeta oli ino gat samting blong talem long mi ...."

16.4. That statement is telling in the following respects –

(a) The claim by Joel Paul, Malon William and Calisto Cevuard that they were in the Sanma Provincial Council is not possibly true because –

(i) No Minutes of the meeting was disclosed;

(ii) If it is true, then Councillor Silas Rocroc was not present because he was driving the CEO Mr Moli around that day.

(b) Mr Paul's claim that he received a call that there was tension between the police and civilians is inconsistent with what he says in his statement that it was the Vice President (Mr Malon William) who had informed him about the incident.

(c) Mr Paul, Mr Malon William and Mr Cevuard already knew the existence of a search warrant, so why did they go down to NISCOL premises when they should just let the police do their job by executing the warrant.

(d) At no stage did Mr Paul as President at the time (or Mr Malon as Vice-President or Mr Cevuard as Councillor and Member of the NISCOL Board), mention in his statement that he told Mr Moli something to this effect:

"Look Mr Moli, we are advised the police have a lawful search warrant therefore they must be allowed to do the search."

The Claims therefore by each of them that they went to NISCOL as leaders to sort out the tension must be rejected. There is not a shred of evidence that they did stop the tension, let alone try.

(e) The statement by Mr Paul shows that it was Mr Moli who planned and deliberately organized the unlawful gathering of the defendants. His claims that he did not do so are rejected.

(f) The claims by Mr Paul, Mr Malon and Mr Cevuard that they did not intent to cause problems are rejected. If that was the truth then, after Mr Paul had spoken with Mr Moli and the Police and found out that he had no part to play in the whole affair, he and Mr Cevuard and Mr Malon should have just left at that point in time. However, the facts show that they stayed on and joined the group to move the police back to the main gate when one of them said: "Naoia yufala ol Force Members yufala I shootum mifala." This in my view was a direct incitement to commit a breach of the peace. Fortunately, the police retreated and withdrew to avoid a riot arising.

16.5. Counsel for the defendants submitted –

(a) In relation to Mr Joel Paul, Mr Malon William, Mr Calisto Cevuard and Mr Silas Rocroc that they are community leaders and councillors of the Sanma Provincial Council and that if a custodial or a suspended sentence is imposed on them they would lose their seats, thus putting the government to additional expenses in organizing and holding bye-elections.

(b) Further, it is submitted by defence counsel on behalf of Mr Moli that Mr Moli intends to contest the National General Elections and a custodial or a suspended sentence would affect his prospects given the effort that he has put in over the past years.

16.6. In response, it is the considered view of the Court that these factors do not mitigate or excuse the defendants from their actions, rather these factors aggravate their actions. As community leaders it is expected of them that they uphold the laws instead of taking the law into their own hands. Their actions on 20th May 2012 indicate these defendants took the law into their own hands. And having been charged and having pleaded guilty, the Court is duty-bound to consider and impose their punishments only according to law. The Court will not concern itself with the political wranglings about the adverse effects of any punishments on the defendants intentions to stand for elections or their status at a provincial council. Everyone is equal before the law and if leaders deliberately break the laws, they must be prepared to accept responsibility for their actions and can expect to be punished, but only according to law.

17. The five leaders (Mr Moli, Mr Paul, Mr Malon, Mr Cevuard and Mr Rocroc) and the other seven defendants having been aware there was a search warrant issued under which the Police were acting, they deliberately by their actions chose to ignore it or prevent it being executed. Court Orders and/or warrants must be adhered to, observed and respected. (See Yap v. Tin Siau Tan [1987] PNGSC 21 referred to by the Court of Appeal in Christian Roger De Robillard Case [1991] VUCA 1). In Yaps Case the Court said –

"A party who knows of an order ........... cannot be permitted to disobey it......... As long as it existed, it must be obeyed....."

17.1. In the Robillard Case the Court of Appeal also referred to the Canadian Case of Canada Metal Co. Ltd v. Canadian Broadcasting Corporation (No. 2) (1975) 48 DLR 641 at 669 where the Court said-

"To allow the Court to be disobeyed would be to tread the road towards anarchy. If Orders of the Courts can be treated with disrespect, the whole administration of justice is brought into scorn.... If remedies granted by the Courts to correct wrongs can be ignored then there will be nothing left but for each person to take the law into their own hands.......... Loss of respect for the Courts will quickly result in the destruction of our Society......."

17.2. It was submitted on behalf of Mr Joel Paul, Mr Malon William, Mr Calisto Cevuard and Mr Silas Rocroc that they did not intend to cause problems. However, the legal position as regards disrespect of Court Orders or Warrants is that intention or motive is immaterial. Still in the Robillard Case the Court of Appeal referred to the English Case of R v. Poplar Borough Council (No. 2) [1992] 1 K.B 95 at 103 where the Court said –

"Unless and until the time comes when the law of this country is that a person may disobey an order of the Court or the law as much as he likes, if he does it conscientiously, the question of motive is immaterial."

17.3. From the facts these leaders were advised there was a warrant which the Police were executing. Therefore they cannot now plead they had no intention to cause problems. Through their physical presence with the others walking to the main gate and barring Police from entry, they committed contempt.

17.4. The foregoing reasons, in addition to the aggravating features submitted by the Public Prosecutor make the offendings of the defendants in this case more serious and places it, if not on the same scale as the Nicklam Case, or slightly higher.

Appropriate Punishments And Purposes

17.5. For those reasons, the Court must therefore impose appropriate sentences that will serve the following purposes:-

(a) To mark the gravity of the defendant's offendings.

(b) To mark the public disapproval of their actions on 20th May 2011.

(c) To act as a deterrence both to the defendants and to others.

(d) To punish the defendants adequately.

17.6. And to achieve the above purposes the Court is of the clear view that custodial sentences, suspended sentences and heavy fines are the appropriate punishments to be imposed on the defendants.

Convictions And Sentences

18. The Court therefore convicts all the defendants and sentences each of them under four categories as follows:-

a. Category 1

18.1. (i) Jacob Charley Rocroc, your part in the offendings was minimal merely through your presence. Your past record has no bearing. You are convicted and sentenced under Section 58 C of the Act as follows –

• For Unlawful Assembly – A fine of VT5.000; and

• For Obstructing Police – A fine of VT5.000.

You must pay a total fine of VT10.000 to the Court within 5 days from today's date. If you fail to pay your fines within this period, you will perform Community Service at the rate of 8 hours for every VT1.000 of your fines. That is a total of 18 hours. And if you fail to perform Community Service, you will go straight to prison for 3 months.

18.2. (ii) Lulu Rocroc, you also played only a minor part merely through your presence. Your past record has no bearing. You are therefore convicted and sentenced under Section 58 C of the Act as follows:-

• For Unlawful Assembly – A fine of VT5.000; and

• For Obstructing Police – A fine of VT5.000.

You must pay a total of VT10.000 to the Court within 5 days from today's date. If you fail to pay your fines within this period, you will perform Community Service at the rate of 8 hours for every VT1.000 of your fines. That is a total of 18 hours. And if you fail to perform Community Service, you will go straight to prison for 3 months.

b. Category 2

19. (i) Rex Warpocpoc, you played an active part in the offendings on 20th May 2011 by being aggressive and abusive towards Police. You are therefore convicted and sentenced under Section 58 C of the Act as follows –

• For Unlawful Assembly – A fine of VT10.000; and

• For Obstructing Police – A fine of 10.000.

You must pay a total of VT20.000 to the Court within 7 days from the date hereof. If you fail to pay your fines within this period, you will perform Community Service at the rate of 8 hours for every VT1.000 of your fines. That is a total of 160 hours. And if you fail to do Community Service, you will go straight to prison for 4 months.

19.1. (ii) Nicolson Kath you like Rex Warpocpoc were also aggressive and abusive at the Police on 20th May 2011. Accordingly, you are convicted and sentenced under Section 58 C as follows –

• For Unlawful Assembly – A fine of VT10.000; and

• For Obstructing Police – A fine of VT10.000.

You must pay a total of VT20.000 within 7 days from today's date. If you fail to pay within this period, you will perform Community Service at the rate of 8 hours for every VT1.000 of your fines. That is a total of 160 hours. And if you fail to perform Community Service, you will go straight to prison for 4 months.

(iii) Kalwar Rocroc you like Rex Warpocpoc and Nicolson Kath

was also very aggressive and abusive towards the Police on 20th May 2011. You have a past record of criminal convictions one of which was imprisonment for 1 month for unlawful assembly but that was back in 1985 and you have not re-offended since. That record has no bearing. However, for your part and offendings on 20th May 2011, you are convicted and sentenced under Section 58 C of the Act as follows –

• For Unlawful Assembly – A fine of VT10.000; and

• For Obstructing Police – A fine of VT10.000.

You must pay a total of VT20.000 within 7 days from today's date to the Court. If you do not pay your fines within this period, you will perform Community Service at the rate of 8 hours for every VT1.000 of your fines. And if you do not do Community Service, you will go straight to prison for a period of 4 months.

(c) Category 3

20. This category consists of the offenders who hold and continue to hold leadership positions within the currently suspended Sanma Provincial Council. These defendants are Mr Joel Paul, Mr Malon William, Mr Calisto Cevuard and Mr Silas Rocroc. As leaders their presence and participation on 20th May 2011 are considered very serious and imprisonment sentences would have been necessary and appropriate had it not been for the following mitigating factors –

(a) Early guilty pleas;

(b) First-time offenders at least for Mr Joel Paul, Mr Malon William and Mr Calisto Cevuard; and

(c) Expressions of remorse.

20.1. For Mr Silas Rocroc, he has a history of criminal convictions in the Senior Magistrate's Court since 2000. His last conviction was in April 2006 for abusive language for which he was fined VT2.000. But these have no bearing on his current sentence. The Court is of the view that only heavy fines under Section 58 C will be appropriate for these four defendants. Accordingly, the Court convicts and sentences each of the four defendants as follows –

20.2. (i) Silas Rocroc, you are convicted and sentenced to pay fines as follows –

• For Unlawful Assembly – VT25.000; and

• For Obstructing Police – VT 25.000.

You must pay the total of VT50.000 to the Court within 14 days from today's date. If you do not pay your fines within this period, you will perform Community Service at the rate of 8 hours for every VT1.000 of your fines. That is a total of 320 hours. And if you fail to do Community Service, you will go straight to prison for 7 months.

20.3. (ii) Calisto Cevuard, you are convicted and sentenced to pay fines for –

• Unlawful Assembly – VT25.000; and

• Obstructing Police – VT25.000.

You must pay the total of VT50.000 to the Court within 14 days from today's date. If you fail to pay your fines within this period, you will perform Community Service at the rate of 8 hours for every VT1.000 of your fines. And if you fail to do Community Service, you will go straight to prison for 7 months.

20.4. (iii) Malon William, you are convicted and sentenced to pay fines for –

• Unlawful Assembly – VT25.000; and

• Obstructing Police – VT25.000.

You must pay the total of VT50.000 to the Court within 14 days from today's date. If you fail to pay your fines within this period, you will do Community Service at the rate of 8 hours for every VT1.000 of your fines. That is a total of 320 hours. And if you fail to do Community Service, you will go straight to prison for 7 months.

20.5. (iv) Joel Paul, you are convicted and sentenced to fines for –

• Unlawful Assembly – VT25.000; and

• Obstructing Police – VT25.000.

You must pay the total of VT50.000 to the Court within 14 days from today's date. If you fail to pay your fines within this period, you will do Community Service at the rate of 8 hours for every VT1.000. That is a total of 320 hours. And if you fail to do Community Service, you will go straight to prison for 7 months.

21. c. Category 4.

The three defendants who fall into this category are Kalfau Moli, David Wilson Rotul and Jansen Moli. From the facts, these are the main leaders and instigators of the offendings committed against the Police on 20th May 2011. Their participation and actions are seen as the most serious and had it not been for their mitigating factors, immediate custodial sentences would have been appropriate. However, only suspended sentences under Section 57 of the Act will be appropriate for the following mitigating factors –

(a) Early guilty pleas;

(b) Being first-time offenders; and

(c) Expressions of remorse and apology at least by Mr Kalfau Moli.

Accordingly, the Court convicts and sentences each of these defendants as follows:-

21.1. (i) Kalfau Moli, you are sentenced to imprisonment for –

• Unlawful Assembly – 12 months imprisonment; and

• Obstructing Police – 12 months imprisonment. These sentences run concurrently. However, these are suspended under Section 57 of the Act for a period of 16 months on the condition that you must not re-offend or commit other offences for which you will be charged and convicted. If you do, your sentence of 12 months imprisonment will be activated automatically.

21.2. (ii) David Wilson Rotul, you are sentenced to imprisonment for-

• Unlawful Assembly – 12 months imprisonment; and

• Obstructing Police – 12 months imprisonment. These sentences run concurrently. However, these are suspended under Section 57 of the Act for a period of 16 months on the condition that you must not re-offend or commit other offences for which you will be charged and convicted. If you do, your sentence of 12 months imprisonment will be activated automatically.

21.3. (iii) Jansen Moli, you are sentenced to imprisonment for –

• Unlawful Assembly – 12 months imprisonment; and

• Obstructing Police – 12 months imprisonment. These sentences run concurrently. However, these are suspended under Section 57 of the Act for a period of 16 months on the condition that you must not re-offend or commit other offences for which you will be charged and convicted. If you do, your sentence of 12 months imprisonment will be activated automatically.

Right of Appeal Advised

22. Those are the sentences of the Court on each of the 12 defendants in this case. There is a right of appeal against sentence within 14 days if any of the defendant so chooses.

23. The total amount of fines to be paid by the 9 defendants in Categories 1, 2 and 3 will be VT220.000. These will be paid to the Court in the first instance.

DATED at Luganville this 5th day of July 2012.

BY THE COURT

OLIVER A. SAKSAK
Judge