Public Prosecutor v Kalkoa James [2000] VUSC 65; Criminal Case No 006 of 1999 (14 November 2000)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

LAKATORO / MALEKULA

(Criminal Jurisdiction)

Criminal Case No. 6 of 1999

File No. 60 of 1999

class="Mss="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> P PROSECUTOR

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KALKOA JAMES

Coram: Before Justice Oliver A. Saksak

Miss Wendy Wanemay – Clerk

Inspector Wilson D. Garae for ublic Prosecutor

Mr Kiel Loughman for the Defendant

SENTENCE

ass="MsoBoMsoBodyText" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1"> The defendant appears before me today charged with Attempted Rape, Attempted Unlawful Sexual Intercourse, Indecent Assault, and two counts of Indecent Act in a public place contrary to section 94(1) of the Penal Code Act [CAP.135] (the Act).

He pleads not-guilty to attempted rape, attempted unlawful sexual intercourse and indecent assault. But he pleaded guilty to two counts of indecent act. The prosecution applies to withdraw counts 1, 2 and 3 and the Court accordingly withdraws those charges.

At the time of the Commission of these offences the girl was 11 years of age. Her Birth Certificate shows that she was born on 27^th March 1985. These offences were committed in April 1996.

The defendant made a written statement to the Police on 16^th July 1996 admitting to indecent actshe kitchen of the vic victim’s parents. This is a private place but it is a place which the public can be permitted to have access to and it falls within the meaning of section 94(1) of the Act.

In sentencing the defendant I take into account his clean past record or character, her, his admission to the police and to the Courts, his attempt to reconcile with the relatives of the victim of his actions. Since the date of the offence the defendant has been living in a de facto relationship maintaining three children of that relationship and involving in the work of his church. He is a subsistence farmer unable to pay a large amount of fine.

What makes this case serious is the fact that the girl was 11 years old. Earlier today the Court sentenced a defendant to five months imprisonment suspended for 12 months for unlawful sexual intercourse with a girl of 12 years of age. See Public Prosecutor –v- Kalpeni Lapenmal Cr. No.8 of 1999 unreported. From these cases the trend seems to be that victims are getting younger.

Under section 94 of the Act, this offence carries a maximum of 2 years imprisonment. The offences of indecent act took place first in April 1996 (count 4) and then between April and July 1996 (count 5). The court considers imposing one sentence only to cover those series of indecent acts.

In the circumstances of the case and to deter others from doing similar acts especially to young girls or children, I consider that a sentence of imprisonment is appropriate but that sentence will be suspended.

I therefore sentence the defendant to 6 months imprisonment, suspended for a period of 13 s from today. This sentencetence is imposed pursuant to the provisions of the Suspension of Offences Act [CAP.67].

DATED at Lakatoro this 14^th day of Nor, 2000.

BY THE COURT

OLIVER A. SAKSAK

Judge