Public Prosecutor v Kalsale [2007] VUCA 11; Criminal Appeal Case 03 of 2007 (17 August 2007)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

CRIMNAL APPEAL CASE No.03 OF 2007

BETWEEN:

PUBLIC PROSECUTOR
Appellant

AND:

DAVID KALSALE
Respondent

Coram: Hon. Ronald Young J
Hon. Oliver Saksak J
Hon. Edwin Goldsbrough J
Hon. Hamlison Bulu J
Hon. Christopher Tuohy J

Counsel: Mr. Standish for the Appellant
Mr. Bartels for the Respondent

Date of hearing: 16 August 2007
Date of judgment: 17 August 2007

JUDGMENT

Introduction

1. This is an appeal against the sentence of 2 years 4 months imprisonment suspended for two years and a twelve months supervision order after a plea of guilty on a count of indecent assault. The Appellant says the sentence was manifestly inadequate. We proceed on the basis it is the established law of Vanuatu that the Public Prosecutor may bring an appeal against sentence based on these grounds

Facts

2. On 29 August 2006 a young 7 year old boy was walking towards his grand mother’s house. The Respondent grabbed the young boy and dragged him into the bush. There, the Respondent removed the boy’s trousers, spat on his anus, and anally penetrated him. The young boy reacted to the pain caused by the penetration and called out. He had blood on his trousers. Eventually the assault ended and the Respondent left. The young boy went to his grandmother and told her about the assault. He was taken to hospital for treatment. The Respondent was initially charged with both indecent assault and attempted rape. On 19 October 2006 he pleaded guilty to indecent assault. The attempted rape charge did not proceed.

3. At sentencing the Judge identified the aggravating features as the age of the victim and the injury to the boy. In mitigation the Judge acknowledged the Respondent had been depressed and anxious before the assault. The Judge concluded the proper starting point was 4 years imprisonment and reduced this to 3 years taking into account the Respondent’s guilty plea, that he was a first time offender, that he was remorseful and what the Judge described with respect to the Respondent as "a problem with himself".

4. The Judge deducted 8 months from the 3 years imprisonment for the time spent in custody on remand. The Judge concluded that this was a proper case for suspension of the sentence of imprisonment. He suspended the sentence of 2 years and 4 months imprisonment for two years. In addition he sentenced the Respondent to supervision for twelve months.

5. As to the background to the sentence of supervision the Appellant said in submissions that at sentencing the Judge asked the Probation Officer what assistance could be given to such an offender. The Probation Officer is said to have told the Judge that there was no rehabilitative programme for such offending available locally, however the Probation Service could keep the Respondent away from young children if he was subject to a sentence of supervision.

Counsel’s Submissions

6. In support of submissions that the sentence was manifestly inadequate, the Appellant says:

(a) this was a very serious indecent assault;

(b) no credit for remorse should have been given by the sentencing Judge given the Respondent claimed the complainant had consented to the act;

(c) the Judge should not have treated the Respondent as a "first time offender" because the Respondent had previously committed similar acts which had been dealt with at the village level;

(d) the sentencing Judge did not give sufficient weight to the aggravating features and placed too much weight on the mitigating features especially the conclusion that the Respondent had "a problem with himself";

(e) the Judge placed too much emphasis on the Respondent’s claim he did not obtain sexual gratification for the crime;

(f) the sentencing Judge failed to adequately identify his reasons for suspension of the sentence. Suspension of the sentence of imprisonment was not, the Appellant said, appropriate in the circumstances;

(g) the period of imprisonment and the suspension in this case was inconsistent with other similar cases.

7. Finally the Appellant submitted that the introduction of new sentencing law (Penal Code Act Cap. 135) in Vanuatu and particularly the statutory invocation (s.37) that the Courts have regard to the possibility of keeping an offender in the community, as far as possible, has no effect on this appeal.

8. The Respondent submits the sentence imposed was adequate and appropriate. The Respondent says the authorities used by the Appellant to support their submissions that the sentence was out of kilter with similar cases could be distinguished on their facts. The Respondent says the Judge correctly identified the aggravating and mitigating features and it was open for the Judge to conclude that a deterrent sentence was not required in this case. The Respondent submitted that given this is prosecution appeal and given the Respondent had been 8 months in custody before sentencing he should now be allowed to keep on with his suspended sentence in the community. Counsel provided us with a report from the Respondent’s supervisor with respect to his supervision which said he was undertaking the sentence appropriately.

9. As to suspension, the Respondent says the Judge did turn his mind to the statutory criteria for suspension. Supervision was appropriate, the Respondent says, given the pre-sentence report said the Probation Service could assist the Respondent to deal with issues that contributed to the offending.

Discussion

10. We are satisfied that the sentence of imprisonment was manifestly inadequate and that there should not have been suspension of the sentence of imprisonment for reasons we will give.

11. However we do propose to increase the period of imprisonment. The current offence carried a maximum penalty of 10 years imprisonment when the Appellant was convicted (s.98 of the Penal Code Act].

12. This was a brutal sexual assault on a very young boy. As to the aggravating features of the offending, we consider that there were four. Firstly, the age of the complainant. The victim was 7 years of age when he was assaulted.

13. Secondly, the indecent assault involved an element of unlawful detention. The complainant was walking through the bush heading to his grand mother’s home. He was grabbed by the Respondent and carried further into the bush for the purpose of the sexual assault.

14. Thirdly, as we have said, the offending involved an extremely serious sexual assault, the anal violation of this boy, which occurred over a period of some time.

15. Fourthly, the assault caused the complainant physical injury. He was left bleeding and these injuries required a hospital admission.

16. These serious aggravating factors indicate an appropriate starting point was near the maximum for indecent assault. This Court has previously said that a starting point of 5 - 6 years imprisonment or more for rape with no aggravating features is appropriate see: PP v. Scott [2002] VUCA29.

17. This offending was not charged as rape and it is appropriate to acknowledge the lower maximum penalty for indecent assault compared with rape. However this was in fact the anal rape of a 7 year old boy in seriously aggravating circumstances. Young boys are entitled to the same protection as young girls from such serious predatory sexual offending.

18. At first instance no objection could have been made to a starting point of five to six years imprisonment in this case.

19. As to the mitigating factors we disagree with the sentencing Judge that the Respondent was entitled to have taken into account the fact that he was of good character. There was evidence, accepted by the Respondent, that he had previously offended in a similar way albeit it some years previously which was dealt with at the local level.

20. As this Court said in Public Prosecutor v. Bae (2003) VUCA14:

"The sentencing Judge articulated the reasons for his approach by reference to two factors. The first that the Respondent was a first offender and that the incident was not repetitive indicating that it was not the habitual character of Mr Bae. We are of the view that this assessment was not available to the Judge. It is essential that the Court sentence only on the basis of actual offending which is admitted or proved. The sentencing was for one act of sexual intercourse with his daughter who was not more than 16 years. However it is quite unrealistic to treat that as a one-off incident by a person who had otherwise been totally blameless in his conduct. On the contrary he admitted a course of conduct which had gone on for years in which he used his daughter as a means of obtaining sexual gratification. He is not sentenced additionally because of those factors but he cannot come before the Court and ask to be treated as someone who has had a once only fall from grace. This was a man who was admitting one charge of intercourse but it was not out of the blue and was in fact the culmination of behaviour which needed to be condemned in the strongest terms and which occurred over a lengthy period".

21. While the offending in Bae was against the same complainant the principle expressed in Bae also applies to this case. The Respondent cannot claim this was a one off incident committed by a person otherwise totally blameless in his conduct.

22. Nor do we consider whether or not the motive for the crime was sexual gratification or otherwise is relevant in sentencing. It does not lessen the seriousness of the offending if the offender claims he was not motivated by sexual gratification to commit the crime.

23. The sentencing judge said that he took into account in reducing the starting point of four years imprisonment to three years imprisonment that the Respondent had "a problem with himself". This problem was apparently that he suffered from depression and anxiety. A psychological report on the Respondent was prepared before sentence. It did not identify that the he suffered from any mental illness. There was therefore nothing in the reports before the Court to establish that the Respondent had any psychological vulnerability that would either reduce his culpability or that a sentence of imprisonment would fall especially hard on his shoulders.

24. Counsel for the respondent in his submissions before us raised s. 37 of the new sentencing provisions in the Penal Code. That section encourages the Court to "have regard to the possibility of keeping offenders in the community" consistent with public safety. However counsel for the Respondent accepted that provision provided no assistance to the Court given the seriousness of the offending here.

25. We accept the Respondent is entitled to a reduction in the proper starting point for pleading guilty to the offence. There is also some evidence of his remorse although the suggestion that the boy consented to the sexual assault reduces the impact of the claimed remorse. We consider beyond these matters there are no other mitigating factors here.

26. We consider the proper starting point, given this is a prosecutorial appeal, is 5 years imprisonment.

27. This is at the bottom of the appropriate range for this offending. From there we deduct 15 months to reflect the mitigating factors reducing the sentence to one of 3 years and 9 months imprisonment.

28. As to suspension of sentences of imprisonment for offending such as this, this Court previously said in PP v. Gideon [2002] VUCA7:

"It will only be in the most extreme of cases that suspension could ever be contemplated in a case of sexual abuse. There is nothing in this case which brings it into that category. Men must learn that they cannot obtain sexual gratification at the expense of the weak and the vulnerable. What occurred is a tragedy for all involved. Men who take advantage sexually of young people forfeit their right to remain in the community."

29. This is not one of those "extreme" cases where suspension could be contemplated. We repeat this was a brutal sexual assault on a very young boy.

30. From the appropriate sentence of 3 yrs 9 months Imprisonment, 8 months should be deducted for the period already spent in custody reducing the sentence to one of 3 years and 1 month imprisonment.

31. However because this is a prosecution appeal and the sentence we have arrived at is not significantly higher than that set by the sentencing judge, and because we have decided the sentence should not be suspended, we consider the original sentence of 2 years and 4 months imprisonment is sufficient in the circumstances to meet the justice of this case.

32. We make it clear though that at first instance a much higher sentence would have been appropriate.

33. A starting point near the higher end of the 5 – 6 years as we have mentioned, given the aggravating features, could easily have been justified. In a case such as this a reduction of up to 25-30% could be justified given the plea spared a young boy from the stress of reliving the events in count.

Result

34. We therefore allow the appeal, quash the suspension of the sentence of 2 years 4 months imprisonment and confirm that is the sentence of imprisonment. In the circumstances we also quash the sentence of supervision.

DATED at Port-Vila this 17th day of August 2007

BY THE COURT

Ronald YOUNG J
Oliver SAKSAK J
Edwin GOLDSBROUGH J
Hamlison BULU J
Christopher TUOHY J