Public Prosecutor v Kalon [2008] VUSC 11; Criminal Case 60 of 2007 (31 March 2008)

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

Criminal Case No. 60 of 2007

PUBLIC PROSECUTOR

-V-

PHILIP KALON
LEINEARU KALON

Coram: Justice C. N TUOHY

Date of Sentence: 31st March 2008

Counsels: Mrs. Laumae for Public Prosecutor
Mr. Toa for Defendants

SENTENCE

1. Philip Kalon and Leinearu Kalon, you each appear for sentence by the Court. Both of you have been convicted of a charge under Section 103 of the Penal Code Act of abandoning an incapable person, and both you have also been convicted of an offence under Section 104 of the Penal Code Act of without lawful excuse neglecting to supply the necessities of life for Livan Kalon, so that her life was endangered.
   
2. The maximum penalty for someone convicted for an offence under Section 103 is imprisonment for 5 years and the maximum penalty for someone convicted of an offence under Section 104 is imprisonment for 7 years.
   
3. I do not propose to traverse the facts of the case, I have already given an oral judgment which covers those in detail, it has now been typed and it extends to 31 pages. The only things I want to say about the facts are that these offences represents not one or two single events, but a continuous story of neglect and abandonment extending over probably the last 2 years of Livan’s life.
   
4. It was terribly sad for everyone in Court to hear the evidence of the neglect of this little girl and to have to think what is was like for her, a handicapped child, being left alone without food, water, company or care for considerable periods. Her life over the last 2 years of her life must have been very sad and very hard and very lonely. This was your responsibility as her parents.
   
5. It seems that the causes for you neglecting her were two-fold. First was the fact that you have a number of younger children of both of you to look after but of course you were not alone in that situation. There are many people in Vanuatu who care lovingly for disabled children even though they have got other children to look after as well. The real reason I think is the one that you gave in your interviews, namely that you were ashamed of Livan’s disabilities or handicap. You were very wrong to be ashamed of her. She is a child of God or was a child of God like everyone else, like all other humans. There was no reason to be ashamed, it is not anyone’s fault if a child is disabled or handicapped. Many parents have great joy from their handicapped children.
   
6. The other sad thing is that you found yourself unable to reach out to your relatives and ask for help. They were ready to give help, they even gave help when you did not know about it by looking after Livan but they were scared to do more because you, Philip, would have been angry with them. Another thing that this case shows is that no one should stand by when a child wastes away in neglect and abandonment. People should have the courage to step in, even if it is not their own child rather than see a child suffer like this one did before her death.
   
7. The Court now has to decide what to do with sentence. The effect of my judgment was that I was not satisfied that the neglect and abandonment by you of Livan was the direct cause of her death. Certainly it endangered her life and caused her suffering.
   
8. I have received helpful pre-sentence reports which I thank the Correctional Officer for. They tell me that you are basically village people from Eton living a village life, by which I mean that you live in a house in a village and you obtain your livelihood through subsistence gardening. You have your own children to look after; you are members of your church and play a role in that.
   
9. An important point to keep mind with every sentencing is that Parliament changed the law in relation to sentencing last year or the year before and it provided the Court with more options rather than just imprisonment. In particular it passed Section 37 of the Penal Code Act which says:
   

"If an offender is convicted of an offence punishable by imprisonment the Court must in addition to other sentencing options it may impose have regard to the possibility of keeping offenders in the community so as far as that is practicable and consistent with the safety of the community".

I do not think that you pose any danger to the safety of the community. Therefore I think that the Court should strive to impose a sentence other than imprisonment in your case.

10. It should be a sentence which marks the strong denunciation of the Court and the community for this treatment, neglect of a child. What you did is against the culture and the values of Ni-Vanuatu who love and care for their children. I think also that the sentence should be designed to assist you as far as possible in properly caring for your remaining children. Therefore I am going to impose a combination of a punitive sentence by way of community work and a rehabilitative sentence by way of supervision. I do not see any need differentiate between you. I think that your blameworthiness is equal.
    
11. Before imposing the sentence I do want to record the Court’s discontent with the fact that there have been no useful submissions supplied by the prosecutor in this case. This is not anyway the fault of Mrs. Laumae who appeared for the prosecutor this morning. It appears that she was given this file by Mr. Tevi who had carried out the prosecution, only over the week end or perhaps on Friday last. But in any event she was given it with no submissions filed and no instructions of any sort and Mr. Tevi was going overseas. She was left in the position of having no submissions to make and really not knowing anything useful about this case. She therefore applied for an adjournment, for the sentencing to take place after Mr. Tevi’s return, but I refused that because it was unfair for Mr. & Mrs. Kalon and there was no reason for it. Mr. Tevi could have prepared submissions and instructed Mrs. Laumae properly to make those submissions on his behalf. This sentencing date was originally set down for 20th March and was on 17th March shifted to today the 31st March, so he has had many weeks to prepare it. I do not necessarily expect any lengthy submissions but one does expect some assistance from the prosecutor.
    
12. I turn again now to the appropriate sentence. Each of you are sentenced to carry out 300 hours community work each. This is a heavy sentence of community work but that is necessary because this was a bad case of a child being very seriously neglected and abandoned over a considerable period of time.
13. The Correctional Services will arrange for the community work to be done no doubt through chiefs or elders of the church or under their supervision. The other good thing about a sentence of that nature is that the community of Eton, the village or the church, will benefit from your work. That community work will be carried out at times to be arranged.
    
14. As well as that I sentence each of you to supervision for a period 1 year starting today. That sentence will be on standard conditions.
    
15. The intention of the sentence of supervision is so that the Correctional Services, the Probation Officer, will be able to have some oversight of how things are going in terms of your coping with your family responsibilities. If there is any parenting assistance or courses that are necessary that can be carried out through the means of the supervision sentence.
    
16. That is the sentence of the Court, if you are not happy with it you have 14 days to appeal if you wish to.
    

Dated at Port Vila, this 31st day of March, 2008

BY THE COURT

C.N. TUOHY
Judge