Public Prosecutor v Kalo [2005] VUSC 42; Criminal Case 030 of 2005 (18 April 2005)

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

Criminal Case 30 of 2005
SC No. 3 of 2005

PUBLIC PROSECUTOR

VS

DAIRON KALO
JOBIE MATTHEW

Coram: Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Counsel: Mrs Linnes Moli for the Public Prosecutor
Mr Peter Bartels and Mr Jacob Kausiama for the Defendants.

Date of Plea: 15th March 2005
Date of Sentence: 18th April 2005

SENTENCE

The accused Dairon Kalo pleaded guilty to the charge of rape contrary to section 91 of the Penal Code Act. The co-accused Jobie Matthew pleaded guilty to the charge of aiding and abetting rape contrary to sections 30 and 91 of the Act. Dairon Kalo is 18 years old. Jobie is 19 years old. Both of them are unemployed.

On 4^th January 2005 at Leeman Plantation Dairon Kalo had sexual intercourse with the complainant of the case who is 20 years of age. Her consent was obtained by threats of being hit or assaulted and by force when the two boys grabbed the complainant by both hands and pulled her. Jobie assisted in these acts and therefore was charged accordingly. The offence happened in the night at a plantation of coconuts. The accuseds walked away with the complainant’s hand bag after she refused Jobie’s request to have sex with her. They left her alone in the dark to find her own way to a house whose occupant kindly accommodated her for the night.

Rape is a very serious criminal sexual offence. It carries a maximum imprisonment for life. The law also allows that a co-offender who aids or assists in the commission of a crime can be sentenced as a principal offender.

This case is almost similar to Public Prosecutor v. Maslea Scott and Jeremiah Tula [2002] VUCA 20; Criminal Appeal Case No. 2 of 2002 in that there were two accuseds. The Court of Appeal said this at page 3:-

“The time has long come when all men must know and understand that women have the right to control what they do with their bodies and what sexual activity they involve themselves in. If they cannot or will not recognize that fundamental position then they cannot remain within the community.”

It is obvious therefore that for these two accused, terms of imprisonment is inevitable. I consider that there were some aggravating factors as follows:-

(a) Deception by the accuseds that they were taking her to the house of her relative.
(b) Threats by two young men to assault her.
(c) The crime was committed in an isolated place, at night putting the complainant’s life at risk.
(d) The accuseds walked away from complainant and her hand bag exposing her to other danger and perils of the dark.

According to Public Prosecutor v. Ali August, [2000] VUSC 73; Criminal Case No. 14 of 2000 I consider that both accused should be sentenced to 6 years in jail. However I consider the following mitigating factors:-

(a) Their guilty pleas; and
(b) Being first offenders.

The Court allows 1\3 remission for their guilty pleas.

Therefore the total sentence for both Dairon and Jobie are –

6 years = 72 months / 3 = 24 months

Deduct 24 months from 72 months = 48 months. Being first-offenders, I allow credit and accordingly deduct 8 months.

Therefore the Court sentences Dairon Kalo and Jobie Matthew to imprisonment to a term of 40 months, or 3 years and 4 months. The period already taken by them in custody are to be deducted accordingly.

DATED at Luganville this 18^th day of April, 2005.

BY THE COURT

OLIVER A. SAKSAK
Judge