Public Prosecutor v Kai [2024] VUSC 163; Criminal Case 1267 of 2022 (10 July 2024)

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

Criminal Case No. 22/1267 SC/CRML

PUBLIC PROSECUTOR
V
NORM KAI
Accused

Date of Delivery: 10^th July 2024
Date of Sentence: 23^rd January 2023
Before: Justice EP Goldsbrough
In Attendance: Ms. Josephine Tete for the Public Prosecutor
Mrs. Kylie Karu for the Accused

SENTENCE

1. Norm KAI, you have pleaded guilty and have been convicted of committing an act of indecency with a young person. As your victim remains underage, an order is made prohibiting the publication of anything likely to identify her.
   
2. She was 13 years of age and walking home from her uncle’s house when you came across her. You pulled her by her clothes, asked her if she would have sexual intercourse with you, pushing your hand and touching her vagina and groping her breast whilst trying to kiss her. Your suggestion of sexual intercourse was declined and nothing that you did to the victim was with her consent. This happened on 10^th October 2022. According to your submissions, all of this took place whilst the victim still had her clothes on, thus through that clothing. The statement of facts is silent on this question which makes a substantial difference to the offending. The offending ceased when it was observed by older relatives of the victim. That intervention by the brothers of the victim was most fortunate for both the victim and the offender.
   
3. The maximum penalty for committing an act of indecency with a child is ten years imprisonment. The maximum penalty together with the circumstances of the offence informs the Court as to the right sentence to be imposed. In this case, the age difference between you and your victim, of 11 years, thus her vulnerability, and the fact that you used force to detain your victim, all make this offence more serious.
   
4. Thus, a starting point of one year of imprisonment is set. The age difference is an aggravating feature, contrary to defence submissions. Whilst the victim will always be young, as the submission state, the offender will not always be old. He or she could be also under 18 or over 30. Here he was around 25 when his victim was around 13.
   
5. You were of previous good character. You pleaded guilty to the offence at the earliest opportunity, for which you are entitled to be given some credit. That credit will reduce your sentence from 12 months down to 8 months. You have spent time in custody for this offence, the pre-sentence report suggests that 2 months were spent in custody. Neither the prosecution nor defence submissions take the trouble to identify when you were arrested and when you were released, which is less than helpful to the Court.
   
6. Credit is given for the 2 months spent in pre-sentence custody reducing the end sentence to six months imprisonment. Because of your previous good character and the time you have already spent in custody, the sentence of imprisonment is suspended. It is suspended for twelve months. That also takes into account the facts of the offence and in particular that it was committed through clothing.
   
7. A suspended sentence means that you do not return to prison today but if you are convicted of any offence within the next 12 months, then this sentence can be put into effect, it will not be put into effect if you do not re-offend within the same twelve months.
   
8. You have the right to appeal this sentence but you must begin that process if you wish to use it within 14 days from today.
   

DATED at Port Vila this 10th day of July, 2024.

BY THE COURT

...........................
Hon. EP Goldsbrough
Judge