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Public Prosecutor v Enaus [2008] VUSC 31; Criminal Case 4 of 2008 (3 April 2008)

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

CRIMINAL CASE No.04 OF 2008

PUBLIC PROSECUTOR

-v-

PHILIP ENAUS

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

SENTENCE

This is the sentence of the defendant, Philip Enaus. You are charged with the offence of Threat to kill, Contrary to Section 115 of the Penal Code Act [CAP 135]. On 1st April 2008, you pleaded guilty to that offence.

The brief facts of the case are as follows:

On 8th December 2007, at Lounara, Tanna, you made a threat to kill George Nawanamam (‘the complainant’).

The background to the 'incident is that TVL arranged for the complainant to clear some land so that it could erect a mobile phone tower. The land where the tower was to be erected was subject to dispute between the complainant’s group and your group.

You came to the area holding a bush knife. You asked the complainant why he was clearing the land. You told the complainant that you would cut him dead with the bush knife like pig.

After the threat, you (and the people you were with) left. You did not make any attempt to cut the complainant with the bush knife.

The prosecution submits that the Court does apply the guideline judgment in the case of Kell Walker, Criminal appeal case No.06 of 2007 referred to in the case of PP -v- Kalia, Criminal Case No.04 of 2008. The prosecution submits that in applying the Kell Walker principle, the Court should appreciate the differences between the Kell Walker case and the present case. In this case, the prosecution concedes the defendant was angry. The defendant believes he has a claim over the clearing land. The prosecution says this is opened to the Court to suspend a sentence of imprisonment if the guideline judgment in Kell Walker case is applied.

The Defendant has no previous convictions. The prosecution submits that the sentence imposed in this case can be similar to the sentence in the Kalia’s case of a sentence of a suspended sentence of imprisonment and a Supervision Order under Section 58G of the Penal Code (Amendment) Act No. of 2007.

Your lawyer told the Court that you are 39 years old. You are married with 5 children and 3 of them attended school. You pleaded guilty at the first time the opportunity is given to you. You are a member of Catholic Church in your Community. You are a first time offender.

Your lawyer told the Court that this case is connected with a land which is a very sensitive matter in Vanuatu. Your lawyer explains to the Court that there is a clearing of way towards the TVL tour. You, defendant, you dispute the land area with the complainant. You want to clear the land as it is your land and you will use the money paid by TVL to pay the school fees of your son at the Junior Secondary School.

You instructed your lawyer to explain to the Court how you hold the bush knife when you threat to kill the complainant. You are on your way to convey your message to the complainant. You have no intention to use your bush knife. Your lawyer informs the Court you hold your bush knife as anyone in Vanuatu holding his knife as a matter of common practice through Vanuatu.

Your lawyer agrees with the submission of the prosecution.

Threatening to kill a person under Section 115 of the Penal Code is a serious crime and warrants an imprisonment sentence. You may have a case but you cannot take the laws in your own hands to do justice.

In your case I sentence you to 18 months imprisonment and I suspended it for a period of 2 years. In addition, I impose on you a Supervision Order for a period of 6 months and an Order for Community Work for a period of 12 months Section under 58G of the Penal Code Amendment Act No.14 of 2007.

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

BY THE COURT

Vincent LUNABEK
Chief Justice