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Public Prosecutor v Soalo [2009] VUSC 110; Criminal Case 144 of 2009 (6 November 2009)

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

Criminal Case No. 144 of 2009

PUBLIC PROSECUTOR

V

KALORIS SOALO

Coram: Justice D. Fatiaki

Counsel: Mr. Tevi for the State
Mr. Bal for the Defendant

Date of Sentence: 6th November 2009

SENTENCE

1. Kaloris Soalo on the 8th October 2009 you pleaded guilty and were convicted by this Court for an offence of Threatening to Kill Contrary to section 115 of the Penal Code Act [CAP. 135]. This is an offence that carries a maximum penalty of 15 years imprisonment. To give you some idea of how serious this offence is viewed, its maximum penalty is greater than the penalty for Abduction or Unintentional Killing which both carries a maximum penalty of 10 years imprisonment.

2. Having said that, this case highlights the danger of abusing the ease and impersonal convenience of a mobile phone which allows for almost instant text message communication between mobile users on the move and some distance apart.

3. On the 16th August 2009 the defendant sent the complainant 2 mobile text messages. The first message was sent at about 6 pm and reads (translated from bislama):

"For me, right now am with my friend in town, to get something which I will show you tomorrow. I did not get it for you but I got it for it for me but you will just have a look at it tomorrow. After I have shown you what it is, you will tell me whether it is good or bad. I know you will say that it is good. Do you know why I went and got it? You told me you were going to call me but I have not received any calls from you. But if I come to see you, please do not tell me off but just look in to my eyes because you will no longer see me anymore."

4. On the face of this message no threat was made against the complainant or her family members. Indeed the message reads like the plea of an unrequited lover.

5. An hour later the defendant sent the complainant a second text message as follows:
(Translated from bislama):

"Tell your father not to treat you harshly or badly because I got a musket (Rifle/Gun) which I went and got this morning at Erangorango and I left it in my room. I am telling you this because I like you but you don’t realize it. If you tell me off I will listen to you but your family I don’t want to listen to them or any one of them, if not I will shoot them."

6. This message contained a clear threat to shoot the complainant’s family using a firearm that the defendant claims he had acquired that morning.

7. Whatever might have been the defendant’s intention in sending this second text message, the complainant was plainly alarmed by it and reported the matter to the police. The defendant was arrested and questioned by the police later that same night and he admitted sending the text messages but he denied possessing a firearm.

8. I have received a comprehensive pre-sentence report on the defendant prepared by the probation officer which I have found very helpfully. I highlight the following personal circumstances of the defendant gleaned from the report:

The defendant is 25 years of age, single and a first offender;

His parents are separated and both remarried;

His mother is now a widow;

The defendant lives with his mother and 4 siblings at Erakor Village;

He attended primary school up to class 6 and trained as a mechanic at the Vanuatu Vocational School;

The defendant is a regular church-goer and is active in church activities. He has expressed an interest in attending bible school and eventually becoming a pastor;

He earns an income driving a bus in Port-Vila;

Since his remand the defendant has charged a lot and is considered a trustworthy and exemplary remandee;

The defendant claims that he sent the text message out of sense of jealousy, anger and betrayal by the complainant when she broke off the relationship he believed they had. He also said that the complainant’s family members often swore at him wherever they saw him.

9. On the 28th of October 2009 the offender performed a kastom ceremony to the complainant, her parents, aunts and her chief. He presented the following gifts:

4 bundles of coconut;

1 bundle of banana;

2 bundles of taro;

2 mats;

A roll of calico material;

A roll of leaf laplap; and

20,000vt cash

10. During the kastom ceremony the defendant apologized and asked for forgiveness for the wrong he had done and all parties shook hands.

12. I am grateful to both counsels for the assistance provided to the Court as to the appropriate sentence for this case. In that regard I note that the Public Prosecutor proposes a combined sentence comprised of a suspended prison term, a supervision order and a sentence of community work.

I have also considered the following Supreme Court sentencing decisions (in chronological order):

PP –v- Mahit Jackson [2005] VUSC 143;

PP-v- Bob Manase [2005] VUSC 151;

PP-v- Treva Cyreal [2006] VUSC 76;

PP-v- Kell Walker [2007] VUSC 63;

PP –v- Philip Anaus [2008] VUSC 31; and

PP-v- Kauas Kalia [2998] VUSC 32.

13. I confess that I have not gained much assistance from the above-mentioned decisions that are easily distinguishable on their particular facts where the defendants all verbally threatened the complainants and in some instances while being armed with an offensive weapon such as a knife or an axe and, in other instances actual injuries were caused to the complainants. None of those aggravating features are present in this case which might be described as a simple case of issuing a somewhat remote, indirect written threat to kill the complainant’s relatives using a firearm which, it has not been established, the defendant actually possessed when he issued the threatening text message. Indeed there is no suggestion that the defendant ever attempted to made good on his threat.

14. In all the circumstances, and mindful that you have been remanded in custody since August, I sentence you, Kaloris Soalo, to 9 months imprisonment suspended for 12 months on condition that you commit no further offence within the next 12 months.

15. Kaloris Soalo if during the next 12 months, you breach the condition and are convicted of another offence then you will have to serve this 9 months imprisonment in addition to any sentence that may imposed for your re-offending.

16. In addition I impose a supervision order for 12 months with the following 2 additional special conditions:

(1) That you attend counseling with a pastor as and when directed by a Probation Officer; and

(2) That you stay away from and refrain from contacting the complainant through any means whatsoever;

17. To comply with this supervision order you Kaloris Soalo must report to a Probation Officer as soon as possible and not later than 3 days from today. If you do not report to a Probation Officer within that time you may be convicted and sentence for up to 3 months imprisonment .In such an event, your suspended sentence of 9 months imprisonment will be activated and must be served.

18. If you disagree with the sentence imposed on you in this case, you have 14 days to lodge an appeal to the Court of Appeal.

DATED at Port Vila, this 6th day of November, 2009.

BY THE COURT

D.FATIAKI
Judge.