Public Prosecutor v Ken [2003] VUSC 52; Criminal Case No 033 of 2003 (19 September 2003)

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

Criminal Case No. 33 of 2003

PUBLIC PROSECUTOR

v

ANDRE KEN
KALTU KEN
REUBEN ANDRE

Mr. Tavoa for the Prosecution
Mr. Kalmet for the defendants

SENTENCE

Mr. Kaltu Ken you face 2 Counts of Unlawful sexual intercourse with a minor, the first is under section 97 (1) of the Penal Code being having intercourse a minor under 13 years and that carries with the potential of 14 years imprisonment. You face another charge under section 97 (2) with a maximum penalty of 5 years imprisonment. That relates to having sexual intercourse with a girl under the age of 15 years but over the age of 13 years. Mr. Andre Ken you face 3 charges of having sexual intercourse with a girl between 13 and 15 years of age those charges carry with them 5 years imprisonment as a maximum sentence for each. Mr. Reuben Andre you face 2 charges in the same way with a 5 years imprisonment maxmum.

Mr. Kaltu Ken in relation to Count 1 on 3 October 2001 you had sexual intercourse with Anna Bule involving penile vaginal contact at your house in Port Havana. You took off the victim's clothes and underpants and had sexual intercourse. She felt pain and saw blood. You gave her 200VT. She was twelve years old. In relation to Count 2 a similar incident occurred at the home of the victim at Port Havana. That was on 15 July 2002 and you gave her 150VT.

Mr. Andre Ken, in relation to Count 3 on 30 July 2002 you met the victim, you took her to the nearby bush area near your home at Port Havana and had sexual intercourse involving penile vaginal contact, with her. You told her not to say anything to anyone about it and gave her 200VT. In relation to Counts 4 and 5 they were similar incidents. Count 4 related to August 2002 during the Laho Cup Soccer Tournament. You paid her 200VT. Count 5 related to your house in Port Havana. You paid her 150VT.

Mr. Reuben Andre the incidents involving you are in Counts 6 and 7. The first incident occurred between late February and mid March 2002 in the bush close to her home. You took off her clothes and had sexual intercourse with her. You promised her money but you never paid. In Count 7 you took the victim and had sexual intercourse with her along the shoreline at Port Havana. You promised her money, but never paid.

As far as you are concerned Mr. Kaltu Ken you admitted to the Police that you had intercourse and said that you did not force the victim to have sex.

Mr. Andre Ken you said to the police that you had had intercourse but you believed that she was consenting.

Mr. Reuben Andre you said to the police that, although you admitted having intercourse, you did not force her.

There have been effects on the victim. As a result of this offending, she sat some class 6 examination but did not pass. That was somewhat due to the effect of what had happened caused by you Mr. Kaltu Ken. The effect of your actions as far as you other two are concerned also must have had some influence. In 2002, she stayed in the village doing gardening. She does not have any plans for the future, but wants to live a normal life. She said that she was ashamed and embarrassed when you assaulted her by having sexual intercourse. She was afraid to tell anybody about it because her parents would get angry and hurt her. The victim knew that the people in the village were talking about her and this make her afraid to walk around.

The Public Prosecutor in his submissions referred to the case of Public Prosecutor v Gideon 03 of 2001. That is a Court of Appeal decision concerning the particular provisions and the Court of Appeal said in that case that in relation to an offence under section 97 (1), and having to regard the aggravating features, a sentencing judge has to begin with a starting point of not less than 6 years. That relates to Count 1 concerning you Mr. Kaltu Ken. In that case the final sentence was 3 years imprisonment. In a helpful analysis of the facts and the authorities, which I have considered carefully, the Prosecutor puts forward a range of sentencing that he considers appropriate for each of you. Overall the Prosecutor submits that a sentence of imprisonment should be imposed to act as a deterrent to members of the public.

In submissions on your behalf, your lawyer sets out what he considers appropriate mitigating circumstances. There was also references to what the Court of Appeal said in the Gideon case as follows:-

"Children must be protected. Any suggestion that a 12 year old has encourage or initiated sexual intimacy is rejected. If a 12 year is acting foolishly then they need protection from adults. It is totally wrong for adults to take advantage of their immaturity".

On behalf of you Mr. Kaltu Ken, I am told you are now 19 years of age. You live with your parents at your home at Port Havana. You undertake fishing and gardening to help your parents, who are market sellers, and come every second week to market. In addition about three months ago, you started a Kava Nakamal with a partner. You attend church regularly and pay church contributions. You were only 18 years old when you first had sex with the complainant. You pleaded guilty as soon as possible which did not require the victim to give evidence in Court and that is also an indication, it is submitted, of your remorse and contrition. You are willing to perform any customary reconciliation towards the girl and family and promise not to re-offend. Although a suspended sentence is submitted as appropriate, Counsel accepts that in the Gideon Case the Court of Appeal was of the view that a suspended sentence was not appropriate for this type of offence.

Mr. Andre Ken you are 21 of age you are single with no girlfriend you are the brother of Kaltu Ken, at the time of the incident you were 21 of age.

Mr. Reuben you are the eldest of the three of you and are now 23 years of age. You have a girlfriend with whom you are living since November 2001 with your mother at Port Havana. You and some of your other brothers and sisters look after your mother, who is around 70 years of age, since your father died.

In general it is said that you all live with your parents who rely on your contributions to the family finances.

You have all admitted guilt and had been cooperative with the police. You all say that the complainant consented. You all promise not to re-offended and you are all first offenders. I am asked by your counsel to consider entering a conviction but discharging you on conditions. I am also asked to suspend any sentence of imprisonment should I impose that sort of sentence. I have been also asked to consider a probation order. I take into account about what was said to me about the prospects of a custom settlement and gain assistance from the Chief's letters which I have considered. I take into account the provisions of sections 118 and 119 of the Criminal Procedure Code and your willingness to cooperate.

I must take into account that there must be accountability from you for the harm, not only to the victim, but also to the community. I take into account what has happened to the victim and the difficulty she has had but in these circumstances of repetitive offending, I consider that I must denounce your conduct and deter you and others from such offending. I have also to consider the protection the community and other girls of a similar age. I must consider the gravity of your offending and in particular the maximum penalties that are provided, which I have set out. The fact that the victim consented is as a matter of law no defence and does not help you. I accept that you Mr. Kaltu Ken are the youngest of the three of you but you also face the most serious charge being Count 1. I have already mentioned the effect on the victim and while I certainly adopt the least restricted outcome that I can, I must look at the overall offending.

There are aggravating features which included the vulnerability of the victim and her young age and I must take into account, as I have already said, that these were repetitive offences. It did not happen once, but two times on your account Mr. Kaltu Ken, three time for your Mr. Andre Ken and two times for you Mr. Reuben Andre and of course you were the eldest of the three of you. While I understand what your lawyer has said about the repetitive offending not necessarily making the matter particularly worse, the fact that it has happened more than once must be a matter which is taken into account in the level of sentence.

On the mitigation side, of course, I take into account your respective ages but of course I must take into account the difference in age between you and the victim at the time. I take into account that each of you deserves credit for your pleas of guilty. The conduct of the victim can have but little effect because consent from her is no defence. Each of you have expressed remorse through your lawyer. I take into account of course the previous good character of each of the three of you but I am not persuaded that the Court can safely deal with you in these circumstances by leaving you in the community. Despite the submissions of the Prosecutor I also do not think it is appropriate to mix suspended sentence with those of imprisonment.

For you Mr. Kaltu Ken you are in the most serious position because Count 1 has the maximum sentence of 14 years imprisonment. Of course section 118 of the Criminal Procedure Code cannot apply in relation to you on that count but as the Court of Appeal in the Gideon case, has made it quite clear a suspended sentence is inappropriate. I accept that your circumstances Mr. Kaltu Ken can be somewhat distinguished from those of Kevin Gideon. I take into account what the Court of Appeal said is the appropriate starting point and giving you such credit as I can on Court 1 you are sentenced to 2 1/2 years imprisonment. Count 2 of course was a second offence for you against the same victim. The maximum for that offence is 5 years imprisonment. I sentence you on that charge to 15 months imprisonment. Those two sentences will be concurrent, they will be served at the same time, and I will not add one to the other.

Mr. Andre Ken you are in a difficult position because you offended on 3 occasions and that must be reflected in the sentences. On Count 3 you are sentenced to 12 months imprisonment, on Count 4 you are sentenced to imprisonment for 15 months and on Count 5 you are sentenced to imprisonment for 18 months. I make it more on each one because you offended not only once, not only twice but three times. Those sentences will be served together, at the same time.

Mr. Reuben Andre you are the eldest of the three of you. That meant that the age disparity between you and the victim was greatest and again you committed two different offences. However I endeavor to remain consistent about sentencing. On Count 6 you are sentenced to imprisonment for 12 months, and on Count 7 you are sentenced to imprisonment for 15 months. Those likewise will be served at the same time.

In summary, Mr. Kaltu Ken you are sentenced to a total of 2 1/2 years imprisonment, Mr. Andre Ken you are sentenced to a total of 18 months imprisonment and Mr. Reuben Andre you are sentenced to imprisonment for a total of 15 months.

The time that you have each spent in custody will be taken into account and deducted from your sentences. Each of you has 14 days to appeal if you are dissatisfied.

Dated AT PORT VILA, this 19^th day of September 2003

BY THE COURT

P. I. TRESTON
Judge