Public Prosecutor v Kalsaru [2007] VUSC 84; Criminal Case 28 of 2004 (3 September 2007)

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

Criminal Case No. 28 of 2004

PUBLIC PROSECUTOR

-v-

KALSARU EDWIN
KALFAU COLLIN

SENTENCE

Introduction

1. The First Defendant Kalsaru Edwin was charged with 2 counts of unlawful sexual intercourse contrary to section 97 (2) of the Penal Code Act [CAP. 135].
   
2. The Second Defendant Kalfau Collin was charged with one count of unlawful sexual intercourse contrary to section 97 (2) of the Penal Code Act also.
   
3. Both Defendants pleaded guilty to the offence.
   
4. Section 97 (2) provides as follows:-
   

“(2) No person shall have sexual intercourse with any child under the age of 15 years but of or over the age of 13 years.

Penalty: Imprisonment for 5 years.”

5. Subsection (3) goes on to say that it is no defence to a charge under this section that the child consented or that the person charged believed that the child was of or over the age in question.
   

Facts

6. The victim was 13 years old when the Defendants had unlawful sexual intercourse with her.
   

Kalsaru Edwin

7. On the evening of 17 November 2000 the victim went o have her shower in the bathroom. The bathroom was a separate building from the main house. The building housed both the shower and the toilet. There is only one door to get in and out.
   
8. The victim had fetched some water in a bucket and took it into the bathroom. Unknown to her Defendant Kalsaru Edwin was already in there but in the toilet. In the bathroom the victim removed her clothing except her panty. She wanted to close the door and was shocked to see Mr. Kalsaru coming out of the toilet. He immediately started to fondle her. She told him to stop and leave her alone but he did not stop. She refused to take her panty off. Kalsaru took it off by force and told her to lie down on the floor. She refused. He continued to caress her and had her bend down and he had sex with her in that position.
   
9. On 24 November 2000 Kalsaru Edwin had sexual intercourse again with the victim at Seaside. He took her from a marriage ceremony into a garden nearby where they had sex.
   

Kalfau Collin

10. On 16 December 2000 he met the victim at the Imperial Nightclub. About midnight he asked her home. At his home they had consensual sex.
    

Aggravating factors

11. The aggravating factors are:-
    
    • (a) In respect of Kalsaru Edwin:-
    • Victim was 13 years old when sex took place.
    • Sex occurred not only once but twice.
      
    • (b) In respect of Kalfau Collin:-
    • Victim was only 13 years old at time of sex.
      

Mitigating features

12. For Edwin Kalsaru:-
    
    • First time offender;
    • Pleaded guilty at the first opportunity;
    • Apologized to the victim and is sorry for what he did.
      
13. For Kalfau Collin:-
    
    • First time offender;
    • Pleaded guilty to the charge at the first opportunity;
    • Apologized to the victim and is sorry for what he has done.
      
14. The law regarding the offending of this nature is section 97 (2) of the Penal Code Act which I have referred to earlier in this judgment. The offending attracts a maximum term of 5 years imprisonment.
    
15. In sentencing the Defendants today, I look at the circumstances of offending by each Defendant, and submissions made by counsels to determine a sentence that is appropriate in the circumstances of each case of offending.
    
16. I take the case of Kalsaru Edwin first. On the evidence before the Court it appears that the first incident of unlawful sexual intercourse, some force was applied by the Defendant on the victim to enable him to have sex with her. She asked him to stop but he did not. He forced her panty off.
    
17. On the second occasion it was consensual sexual intercourse. No force or intimidation was applied or threats made. However, that does not affect the nature of the offending. It remains an unlawful sexual intercourse as the victim was only 13 years at that time.
    
18. The circumstances of the offending, in my view, falls somewhere between the bottom and halfway of a scale of such offending. It is somewhere in the bottom half of the scale. I take note of what the Court of Appeal said in Public Prosecutor v. Gideon where it said:-
    

“Men must learn that they cannot obtain sexual gratification at the expense of the weak and the vulnerable ... men who take advantage sexually of young people forfeit the right to remain in the community.”

19. It is my view that a sentence of 15 months immediate custody is the appropriate sentence in the circumstances of this case.
    
20. Defendant Kalfau Collin found the victim in a nightclub and asked her to go with him to his home for sex. She agreed and followed him home. The factual situation in this case is so different from the first Defendant.
    
21. Why is a 13 year old girl in a nightclub. It does not justify the actions of the Defendant. However, in my view it does go towards mitigation in favour of the Defendant.
    
22. I am of the view, the offending in the circumstances of this case comes right down at the bottom of the scale. They were both drunk. The victim was not suppose to be in a nightclub and taking alcohol also. A term of 6 months in immediate custody is appropriate in the circumstances of this case.
    
23. In conclusion I take into account the fact that this case has been in the system for a long time. The Public Prosecutor charged the Defendants on 27 May 2004 and it has taken over 3 years to dispose of the matter. In the circumstances, it is my view that the sentences be suspended for 12 months. The Defendants must remain on a good behavior during that period and must not commit the same or any other offence.
    
24. If any of them do commit an offence he will be arrested and serve his suspended term.
    

DATED at Port Vila, this 3rd day of September, 2007.

H. BULU
Judge.