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Public Prosecutor v Walker [2007] VUSC 63; Criminal Case 20 of 2007 (14 June 2007)

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

CRIMINAL CASE No.20 OF 2007

PUBLIC PROSECUTOR

-v-

KELL WALKER

Coram: Chief Justice Vincent Lunabek

Counsel: Mr Bernard Standish for the Public Prosecutor
Mr John Malcolm for the Defendant

SENTENCE

This is the sentence of the Defendant, Kell Walker. On 12 June 2007, this Court found you guilty and convicted you of the offence of threats to kill a person, contrary to Section 115 of the Penal Code Act [CAP.135]. The facts as found by the Court show that you threatened to kill a Mr Glenn Frazer on 31 January 2007 at El Gecko Restaurant Café at a meeting arranged by Ms Naylor at your request. During the conversations with Mr Frazer, you discussed with him about a Court case before the High Court of Singapore. The case involved Mr Michael Hatcher, the Japanese and Ultramachine Holdings Limited. Mr Clare was one of the Directors of the company. You arrived in Vanuatu on 8 January 2007 on board the vessel Retriever 1. As found, you came to Vanuatu to see Messrs Clare and Frazer. However, when you arrived, Mr Clare had already left Vanuatu. You asked Frazer to repay 2 million US$ he got from the Japanese. You asked Frazer to tell Clare to repay the amount of 40 million US$ he got from the Japanese. You told Frazer that you brought to Vanuatu five points guns. You also told him if you had not the problem of Peter Foster, Frazer would be dead already. He had six (6) months to live. They were going to fly in someone. You have proof of what you said. You provided proof of what you said to Frazer in the second meeting you had with him at Number 1 Café on 2 February 2007.

At El Gecko, when you raised matters about the Japanese, Frazer asked you if he is going to die. You told him words to this effect: "they are going to cut your fucking head off". Frazer was fearful for his life. He took steps for security arrangements around his residence and his family.

This is a very serious offence. Section 115 of the Penal Code Act [CAP.135] is the offending section. The maximum penalty provided under that section is 15 years imprisonment.

The prosecution submitted that a sentence of imprisonment should be imposed to reflect the seriousness of the offence, to punish you and to protect the community. The prosecution refers the Court to two (2) Supreme Court cases: PP v. Jackson in Criminal Case No.69 of 2005 (15 December 2005) and PP v. Manses in Criminal Case No.39 of j2005 (16 December 2005). The prosecution accepted that the facts of the 2 cases are different from your case. In the 2 cases, the Defendant threatened to kill a person by holding a weapon with additional offence committed.

Prosecution accepted that you have no weapon with you when you threatened to kill Frazer on 31 January 2007 at El Gecko.

I am informed by the prosecution that you are 59 years old. You have previous criminal records but are no longer relevant in this case. You are married and you have 13 children. In their summary of submissions, the prosecution invited the Court to pass an imprisonment sentence against you to reflect the seriousness of the offence and to consider the suspension or a partly suspended sentence.

Your counsel Mr Malcolm submitted that as a man of almost 60 years old, you have difficulties when the vessel Retriever 1 was detained by the VMA. They did not allow you to get access to the vessel. You stay with the same cloths. You were removed from your medicine on the vessel. You have some health problem. You used a walking stick and since you were removed from the ship, you have got tumour in some part of your body.

I have taken all what your counsel says on your behalf into consideration.

Cases of this nature must always warrant imprisonment sentence to reflect the seriousness of the offence as intended by Parliament. For offence of threats to kill a person, by a Defendant with the presence of a weapon and the use of the weapon is on the higher scale of aggravation and seriousness. A suspended sentence of imprisonment must be only granted if the circumstance of the case justified. I have applied my mind on alternative sentences to imprisonment, such as community and probation, they are not relevant to your situation.

The appropriate sentence in this case is 2 years imprisonment. I consider whether I should suspend the whole sentence, however, I reach the firm view that this is not the sort of case and circumstance after a very contested trial. However, I believe that your personal circumstance warrants for suspending the sentence of 2 years imprisonment in part.

I sentence you for 2 years imprisonment. I order that you serve 12 months with immediate effect and the other remaining 12 months will be suspended and you should be on good behaviour.

You have 14 days to appeal this sentence

DATED at Port-Vila this 14th day of June 2007

BY THE COURT

Vincent LUNABEK
Chief Justice