Public Prosecutor v Kalwat [2009] VUSC 96; Criminal Case 07 of 2007 (14 September 2009)

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

Criminal Case No.07 of 2007

PUBLIC PROSECUTOR

V

JAKSON KALWAT
VILISONY KALPOI
ALBERT KALWAT
MONTO KALSE
ANTONY KALWAT
JESSE KALTAPANG
VIRA HENLEY
KALAUR KALTAPANG
JONATHAN KALSRAP
KALSARI TAPASE

Mr. Molbaleh for the Prosecution
Mr. Kausiama for the Defendants

SENTENCING

I acknowledge the presence of your people here today, as you get older you‘ll understands the gift of another’s persons time, its difficult to calculate, so I acknowledge your presence, attendance, and your support for the parties involved in a tragic incident, I acknowledge the presence of the Complainant and her Supporters. Thank you for your courage for being here today, it must be a difficult time for you.

This is a difficult task; it is not one the Judge would ask to be given to him. It requires some understanding about our behavior as humans when we are affected by alcohol, lust or whatever else it is that drives us.

I acknowledge the value and worth of your Customs Ceremony. The contribution of your Community to such an event which allows men such as this to apologize show remorse and make a token payment for a very clear wrong. I acknowledge the family of the Complainant in accepting that remorse and extending their forgiveness in the manner shown in the photographs of the Customs Ceremony.

A Custom Ceremony acknowledges the wrong that was done. The individual contributions to that wrong to deal with the societal impact, that is the impact on the families of such bad conduct and it is for the Court to then individually deal with the Criminality and poor behavior of the individuals concerned.

A letter was handed to the prosecutor today by the Complainant asking the Judge to be lenient, accepting the apology, acknowledging her contribution to the incident, acknowledging the fact that she was drinking. Society has its rules, one of those basic rules is that we have an obligation to protect those who are unable to protect themselves because they are vulnerable, usually here because of age, the vulnerability of the young that the law endeavours to protect.

The state for its part and I this stage read into the record without reading it out the totality of the factual situation that is contained within the summary of fact:

"The victim was born on the 23 February 1992. She would be 14 years of age when the incident occurred on 24 December 2006.

There are 10 Defendants of different age involved in this case.

Jackson Kalwat was 16 years of age when the offence occurred; unemployed.

Johnathan Kalsrap was 18 years of age; builder;

Minto Kalse was 19 years of age; unemployed;

Kalsari Patas was 34 years of age; gardener at Paradise Cove;

Kalaur Kaltapang was 18 years of age; unemployed;

Anthony Kalwat was 20 years of age; gardener at Breakers Resort at Pango;
Vilisoni Kalpoi was 14 years of age; year 8 student at Central Primary School in Port Vila.

Jesse Kaltapang was 19 years of age; unemployed;

Albert Kalwat was 14 years of age; year 8 student at Onesua high school;

Vira Henly Kasa was 18 years of age; gardener at Breakers resort at Pango.

The victim and all of the Defendants are from Pango village, Efate.

On Sunday 24 December 2006 at 10 o’clock in the morning, the victim went to a house in the village where they had a function for their indoor soccer. She stayed there until the evening.

In the evening the victim and four (4) other girls were listening and dancing to the music.

At about 9.00 o’clock at night, Jackson Kalwat and Vilisoni Kalpoi came to the dance place and called her. Jackson Kawat asked to have sexual intercourse with her. She agreed and followed Jackson to a bush were they had sex.

After that Vilisoni asked her if he could have sex with her. She agreed. They then had sexual intercourse. After the intercourse, both the victim and Vilisoni got dressed.

Suddenly, Albert Kalwat appeared and asked her if they could have sexual intercourse. She refused and said that her tummy was painful. Albert Kalwat replied: "mi mas go wetem yu sapos no bai mi faetem yu nao ia" meaning I must have sexual intercourse with you if not I will assault you.

The victim was so afraid of him then she surrendered herself to him. He then had sexual intercourse with her.

After that Albert Kalwat and the victim joint Jackson Kalwat and Vilisoni who were still waiting for the victim and Albert Kalwat. When the victim and Albert Kalwat had finished having sexual intercourse, they then walk to joint Jackson Kalwat and Vilisoni Kalpoi.
The victim then saw Jesse Kaltapang. He was holding a bottle of kava. He then called the victim to go and see him. He then asked the victim to suck his penis. She refused as her tummy is painful. Albert Kalwat then came to the victim and told her in angry manner to do what Jesse asked her to do. The victim then sucked the penis of Jesse Kaltapang.

Vira Henley then turned up and her to suck his penis. She refused. There came Albert Kalwat again and told her to do what Vira Henley asked her to do. She then sucked the penis of Vira Henley.

The victim went back to the place of the dance. When she was about to go back to her house, Albert Kalwat came and told her to go with him and another boy to buy cigarette. She refused. Albert talked angrily to him then she followed them.

When they reached a house Kalaur Kaltapang was there. Albert Kalwat then told the victim that Kalaur Kaltpang wants to have sexual intercourse with her. She refused. Albert grabbed her left hand and held it tight. She wanted to run away but could not because Albert held her. Albert pulled her to the place where he had sex with the victim. He talked angrily to the victim to take off her clothes. She was so afraid of him. She then removed her clothes. Albert then had sexual intercourse with her again.

When Albert finished, he called onto Kalaur Kaltapang to come and have sex with the victim. Kalaur Kaltapang then came and made the victim sucking his penis. She was still having painful tummy.

She was getting ready to go back to her house to sleep when Anthony Kalwat approached her and asked to have sex with her. She refused. Anthony insisted until he had sex with her.

Anthony then told her that Johnathan Kalsong wants to have sex with her. She refused because her tummy was already sore and she wanted to go and sleep. Johnathan forced her until they had sex. When they had sex, her tummy and vagina was very painful. After that she put her clothe back on.

Suddenly, Minto Kalse and Kalsari Patas turned up. They asked her if they could have sex with her. She refused as she said she was already very painful. She said she could not do it. They then asked her to suck their penis. She refused. She said her throat is dry and sore. They told her that if she does not do it they will report what she did with other boys to the parents of those boys. She then sucked the penis of Minto and then Kalsari.

She then left and went back to her house. She felt her tummy and vagina were very painful. Her throat was very dry.

She said that Albert was the only one who had sex with her 3 times that night. The others had only once.

The girl said that she consented to have sex with Jackson Kalwat and Vilisoni Kalpoi but not others."

I stress this Is a difficult Sentencing, because the person most responsible for the incident Albert Kalwat was 14 year of age at the time. He is the major offender, the facts make that clear. A considerable amount of this conduct would not have taken place without Albert Kalwat’s threats violence and contribution together with it appears the involvement of the others, he was clearly a major mover of the incident.

On the other hand the 34 year old man should have known better, took the availability of sex with a young person for his own sexual satisfaction, and then we have young men involved of very young ages with major potential for the future.

In my view, the law is clear; the law is to protect those who can not protect themselves. As a particular circumstance in respect of the two people that the complainant has acknowledge consent, I propose to deal with them shortly.

But I wish to record my difference of opinion with the submission of the state that you should judge people by their age of the time of sentencing as opposed to their age at the time of their conduct, in my view one needs to take into account the age at the time of the offending not the age of the time of Sentencing. As a matter of principle I record that I strongly disagree with that Submission. As I indicated to you, that there is a requirement to denounce such conduct to deter others in the community and off course the highlight here is to protect the vulnerable ones in our community.

The submission by the State which I pressed the prosecutor on cover the range of imprisonment but it needs to be remembered that the penalty being sought by the State is the maximum, almost of 5 years but the State make clear in its oral Submission that was prior to the Customs ceremony.

There are clear bases for the distinguishing between the Defendants in the Sentencing. And I propose to deal with each of them in due Course.

In respect of Jackson Kalwat and Vilisoni Kalpoi taking into account their pleas of guilty and the factual situation that distinguishes them from others. Each of them there are convicted and Sentenced to 150 hours Community work and placed on Supervision for 12 months with the conditions as set out on the report.

In respect of Albert Kalwat whom I regard as the major offender, appropriate term of imprisonment not Suspended in my view would be in the region of 3 to 4 years imprisonment. A specific mitigating factor is of course his age, because of that I set a term for his prolonged involvement the number of time he preyed on the complainant and his in insistence of conduct with others that would not otherwise have offended need to be clearly identified. Setting the term of imprisonment not Suspended should be imposed upon him I then given a 50% discount because of the age and he is convicted and Sentence to 15 month imprisonment.

In respect of Minto Kalse (I apologise for mispronouncing) your name and Antony Kalwat, for the appropriate term of imprisonment is that of 1 year, which is Suspended for 1 year and you are ordered to carry out 100 hours of community work and you are placed on supervision for 12 month with the conditions as set out in the report.

In respect of Jesse Kaltapang, Vira Henley Kalsa, Kalaur Kaltapang, Jonathan Kalsrap, and Kalsari Tapase you are each convicted and Sentenced to 9 months imprisonment.

You have 14 day to Appeal my Decisions, (See memo to Defendant s and Counsel).

DATED at Port Vila, this 14th day of September 2009.

BY THE COURT

J. CLAPHAM
Judge.