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Public Prosecutor v Nelsor Kalo [2004] VUSC 1; Criminal Case No 041 of 2003 (16 February 2004)

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

CRIMINAL CASE No. 41 of 2003

PUBLIC PROSECUTOR

-v-

DICK NELSOR KALO
REMO TAKAE

Coram: Chief Justice Vincent Lunabek

Counsels: Mr. Liam Shaw for the Public Prosecutor
Mr. John William Timakata for the defendants

SENTENCE

This is the sentence of the two (2) defendants: Dick Nelsor Kalo and Remo Takae. They are both charged and convicted of the offence of Intentional Homicide on 12 December 2003. The offence of Intentional Homicide is contrary to Section 106 of the Penal Code Act [CAP. 135]. Section 106 of the Act reads:

“(1) No person shall by any unlawful Act or omission intentionally cause the death of another person.

Penalty: (a) if the homicide is not premeditated, imprisonment for 20 years.

(b) if the homicide is premeditated, imprisonment for life.

(2) For the purpose of subsection (1), premeditation consists of a decision made before the act to make a homicidal attack on a particular person or on any person who may be found or encountered.”

The prosecution submitted that the prosecution case had two aspects that suggest that the killing was premeditated:

(a) the burial of the body in an unmarked grave to avoid detection;

(b) the confession made by Dick Kalo that he cut the neck of the deceased with a knife.

The prosecution submitted also that these two factors suggest that the killing was not one involving an intention to assault or some other intention prior to the killing took place.

They finally submitted that the Court ought to determine the appropriate sentence on the basis that the maximum penalty for the killing is life imprisonment.

The defence says there was no evidence before the Court that the action was premeditated. They say the prosecution’s case was that the defendants’ motive for the murder of the victim (Willie Karie) was to remove him from the land dispute, so that they may use the land.

They further say that should the Court proceed on the basis of the prosecution’s submission, then, the Court cannot find the existence of a premeditation. They, therefore, submitted that the only charge available is Section 106(1)(a) of the Penal Code Act [CAP.135] which provide for a penalty of 20 years imprisonment.

I consider the prosecution and the defence as to whether or not there is a premeditation, I cam to the conclusion upon the facts that the killing was premeditated. There was some element of dispute over the land between the defendants and the victim’s family.

The burial of the victim’s body in the garden in the early morning indicated that there was a plan before the killing to avoid any detection. The defendant, Dick Kalo, made a confession that he cut the neck of the deceased with a knife.

I proceed with the sentence of the two (2) defendants on the basis that the maximum penalty for the killing is life imprisonment as provided under Section 106(1)(b) of the Penal Code.

The prosecution referred to two (2) cases to the Court:

• In Public Prosecutor v. David Kalopat (Criminal Case No. 8 of 1987), the deceased was shot by the prisoner over a land dispute. The prisoner made a full confession and pleaded guilty. The Court determined that the killing was a spur of the moment decision. The offender was sentenced to life imprisonment, with a recommendation that the prisoner sere at least 12 years imprisonment.
• In Public Prosecutor v. Numanan Iakis and others (Criminal Case No. 42 of 1994), three offenders were sentenced for murder of a woman. The woman was murdered because she had a dispute with her husband. The perpetrator of the killing was sentenced to life imprisonment, with a recommendation that he not be released until at least 20 years had elapsed. The two (2) organizers of the murder were sentenced to 15 years imprisonment.
  

The approach I will follow to sentence the two (2) defendants in this case must be different. The two (2) cases referred to above must be distinguished, although, this Court is not bound by them. The reason being that Section 36(1) of the Interpretation Act [CAP. 132] provides:

“36(1) Where in an Act of Parliament, a penalty is prescribed for an offence against that Act such penalty shall, unless the contrary intention appears, be the maximum penalty.

(2) ...

(3) ...”.

The question I am asking myself is what will be the appropriate sentence in a case such as this.

I hear defence counsel in respect to the antecedents of each and both of the defendants. Both defendants are married and have young children.

Dick Kalo is a first time offender. Remo Takae has a record of minor offence long time ago. For the purpose of this case, it is disregarded.

Both defendants seen to be the only bread-winner for their respective families. Both defendants have family relatives who can look after the children and the wives.

The defendants applied for time be given for consideration of custom ceremony between the victim’s family and the defendants.

Time was given but no custom ceremony taken place as the victim’s family are not interested.

I take what the defendants’ counsel inform the Court. I do not find any mitigating factors. The following are aggravating factors:

• The victim was vulnerable because of his age (old man) he has lack of capability for looking after himself.
• The burial of the body in an unmarked grave to avoid detection.
• The confession by Dick Kalo that he cut the neck of the deceased with a knife.
  

These factors suggest that the killing was not one involving an intention prior to the killing took place.

These lead to premeditation of killing the victim. The offence under Section 106(1)(b) is one of the most serious offence prosecuted under the Penal Code with maximum penalty of life imprisonment.

This is a contested trial, in a contested matter where the death is the result of a premeditated act intending to cause death of another, with no evidence of provocation on the part of the victim, and the victim being a vulnerable (aged or young) the starting point for the sentence to be imposed must be 14 years imprisonment.

The appropriate sentence to be imposed in this case must be 16 years for the two (2) defendants: Dick Nelsor Kalo and Remo Takae.

The defendants have been in custody since 15 July 2003. This must be deducted in their favour.

The two (2) defendants: Dick Nelsor Kalo and Remo Takae are sentenced to 15 years and 5 months imprisonment.

Dated at Port-Vila this 16^th Day of February 2004

BY THE COURT

Vincent LUNABEK
Chief Justice