Public Prosecutor v Keleb [2009] VUSC 111; Criminal Case 117 of 2009 (9 November 2009)

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

Criminal Case No. 117 of 2009

PUBLIC PROSECUTOR

V

ALICK KELEB

Coram: Justice D. Fatiaki

Counsel: Mr. Tevi for the State
Mr. Bal for the Defendant

Date of Hearing: 6th October 2009
Date of Sentence: 9th November 2009

SENTENCE.

1. Alick Keleb you appear in Court today to receive your sentence following your conviction on 6th October 2009 for an offence of Act of Indecency with a Young Person contrary to section 98 A of the Penal Code Act [CAP. 135].

2. The brief facts outlined by the prosecutor and admitted by you describes how on the day in question at Seaside area you called the 7 year old victim who was playing outside your house with 2 friends, to come to you in your kitchen . When the victim came to you, you touched her vagina through her panty and you said to her that you wanted to suck her vagina. After that the victim returned and told her friends about what you had done and said to her. The incident was later reported to the police by the victim’s mother.

3. I have received your comprehensive pre-sentence report prepared by the probation service and I note that you are 55 years and was widowed in 1999 when your wife died of cancer leaving you to raise your 6 children on your own. By all accounts, you have done a reasonable job in raising your children most of whom are either married or working. You are still privately sponsoring your youngest son with his studies at the University of the South Pacific and you have no prior convictions.

4. Alick Keleb you are a relatively well-educated man with both local and overseas training in Customs Administration and Management. You were employed in the Vanuatu Customs Department for 20 years before joining Au Bon Marche 15 years ago as their container clearance officer. You were still working at Au Bon Marche at the time of this shameful incident. Your present employer and immediate supervision both speak highly of you and your employer confirms to the probation officer that you will always have a job with Au Bon Marche as you are considered an "intelligent employee" and a valuable member of the staff. Your employer says however that your only problem is alcohol consumption.

5. You acknowledged this "problem" to the probation officer who prepared your pre-sentence report and, you even claim that you were heavily intoxicated on the day of the incident and as a result you have no personal recollection of your inappropriate behavior towards the victim. I do not accept that for one moment. Your behavior towards the victim was both premeditated and targeted. And your utterance to the victim was closely related to your actions at the time. They were not the ramblings of a drunken man

6. Having said that, even the victim’s mother is reported to have said to the probation officer that you are generally a good man but when you get drunk you tend to "lose your head". You frankly admitted to the probation officer that you have a problem with alcohol. But the law of this country is that voluntary intoxication is not a defence to the charge.

7. Be that as it may Alick Keleb you have pleaded guilty to the offence charged thus accepting responsibility and acknowledging to some extent, the inappropriateness of your behavior towards the victim. Your plea is a matter which the Court views favorably as showing some remorse on your part and, more particularly, for saving the young victim from the additional trauma of having to recount the sordid details of the incident in Court.

8. I have also received and considered a report from the probation officer that you recently performed a Kastom ceremony to the victim’s mother in the presence of your family and chief where you presented gifts of:

- 4 bundles Coconuts;

- 1 bundle Banana;

- 1 bundle Taro;

- 3 mats;

- Roll of calico material;

- 1 basket manioc;

- 1 basket kumala;

- 1 sack rice;

- 4 packets of whole chicken;

- 1 roll of leaf laplap;

- 1 live chicken and

- 15,000vt cash

9. The gifts were accepted by the victim’s mother and you also sought and received her forgiveness for your misbehavior towards her daughter. I am obliged by law to take that custom ceremony into account in assessing the quantum of the penalty to impose on you.

10. I turn next to consider what sentence is appropriate in this case. And I am grateful in that regard for the assistance provided in counsel’s helpful written submissions and case authorities provided to the Court and which I have read and considered.

11. I note from the public prosecutor’s submissions an acceptance that the defendant’s offending in this case might be considered to be at the lowest end of the scale of possible offending for an offence of Indecency with a Young Person and counsel submits that a suspended prison sentence and supervision order would be an appropriate penalty in this case.

12. I have also considered, the judgments of the Court of Appeal in PP-v- Gideon (2002) VUCA7 which was a much more serious case of Unlawful Sexual Intercourse with a child under 13 years [Section 97 (1) of the Penal Code (cap 135)] and PP-v- Boita (2002) VUCA 38 were the offender was charge with the same offence as in this case namely, Act of Indecency with a Young Person (Section 98A). But the similarly between Boita’s case and this case ends there. As defence counsel correctly points out, in Boita’s case the defendant, a school teacher, was charged with 12 Counts and pleaded guilty to 6 Counts involving different students including a distant relative of the defendant. The offences occurred over an extended period of time and the repeated assaults took the form of both digital and oral violations of the victim’s vagina. The Court of Appeal also recognized that Boita’s case "........differs significantly from and is much more serious" than all the other cases which were referred to it, and furthermore, the admitted factual circumstances in Boita’s case were, "... in some cases, so serious and intrusive that they would have supported charges of at least attempted rape and not just indecent assault."

13. I am also mindful of what the Court of Appeal said in Gideon’s case:

".....There is an overwhelming need for the Court on behalf of the community to condemn in the strongest terms anyone who abuses young people in our community. Children must be protected.......... If a 12 year old is acting foolishly then they need protection from adults. It is totally wrong for adults to take advantage of their immaturity,"

14. In this case Alick Keleb, you took advantage of an immature 7 year old girl.

15. Alick Keleb whilst I am willing to treat your offending in this case as a brief solitary incident of indecent non-invasive touching of a young girl’s vagina, I cannot ignore the fact that you are a mature man with daughters of your own and, a neighbor of the victim who abused the naivety and trusting nature of an innocent child. The fact that the victim was barely 7 years of age and had come to your kitchen in obedience to your call to her, only to be indecently assaulted and propositioned by you, is a serious aggravating feature of this case and warrants a sentence of imprisonment.

16. Alick Keleb having regard to all the circumstances of the case in particular, the brief, singular, non-penetrative nature of the assault on the victim and mindful of your guilty plea and past good record, I impose a sentence of 12 months imprisonment suspended for 2 years. This means that you will not have to return to prison today but if you commit another offence in the next 2 years you will have to serve this sentence of 12 months imprisonment in addition to any other prison sentence that you may receive for your re-offending. However, if you remain out in trouble for your next 2 years, then this sentence for 12 months imprisonment will expire and you will not have to serve it.

17. Alick Kelep to help you to stay out of trouble for the next 2 years I also impose on you a Supervision Order under section 58 of the Penal Code with the following 2 additional special conditions:

(1) You must refrain from the consumption of alcoholic liquor unless first authorized in writing by a probation officer; and

(2) You must stay away from and do not speak to the victim and any other young girls who live in your neighborhood at Seaside in the absence of their parents or guardians.

18. In order to comply with this Supervision Order, you must report to a probation officer as soon as practicable and not later than 72 hours from today. I must warn you that any failure on your part to comply with this reporting condition is an offence punishable with imprisonment or a fine up to 10,000vt and will result in your suspended sentence of 12 months imprisonment being immediately activated.

19. You have 14 days within which to appeal against this sentence if you do not agree with it.

DATED at Port Vila, this 9th day of November, 2009.

BY THE COURT

D. FATIAKI
Judge.