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Public Prosecutor v Kalterikia [2005] VUSC 11; Criminal Case 006 of 2005 (10 March 2005)

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

CRIMINAL CASE No. 6 of 2005

PUBLIC PROSECUTOR

–v-

FREDERICK KALTERIKIA

Coram: Chief Justice Vincent Lunabek

Counsel: Ms Kayleen Tavoa for the Prosecution
Mr. Jack Kilu for the Defendant

SENTENCE

This is the sentence of the defendant Frederick Kalterikia. The Defendant was charged with the offence of Unlawful Sexual Intercourse, Contrary to Section 97(2) of the Penal Code Act [CAP. 135].

The Defendant made a confession statement to the Police during his interview at the Police station and he pleaded guilty as charged.

Section 97(2) of the Penal Code Act [CAP 135] provides as follows:

No person shall have sexual intercourse with any child under the age of 15 years but of over the age of 13 years.

Penalty: Imprisonment for 5 years.”

The brief facts are as follows:

• The Defendant is 23 years of age. The defendant resides with his mother and father at Ifira during the commission of the offence.
  
• The complainant is 13 years old during the time of the offence and also resides at Ifira with her parents. The Defendant is the cousin brother of the victim/complainant.
  
• On or about February 2004, the Defendant approaches the complainant and demanded her for sex. The Defendant persuaded the complainant that particular night and have sex with her on the nearby bush.
  
• The Defendant makes her to lie down onto the ground, removing all her clothes, fully naked and then he slept on top of her and had sex with her.
  
• The Defendant and the Complainant continue to have sexual relationship until the month of July when the complainant realises that she didn’t have her menstruation flow (monthly period).
  
• Through out her pregnancy the defendant perpetuates to deny her pregnancy when her Aunt confronted her. However her Aunt with motherhood experience knew she was pregnant and thus invited her for a medical check up in the hospital
  
• The complainant later confessed to her Aunt that she was pregnant and that the baby belongs to the Defendant.
  
• A Medical examination also confirmed six months pregnancy
  
• The Defendant admits having sexual intercourse with the complainant but he challenges that the baby is his.
  
• The Defendant via his family has performed a custom ceremony as submitted by the defence counsel. The Court is asked to consider this custom ceremony for the purpose of section 119 of the Criminal Procedure Code act [CAP. 136]. This will be taken into account in his favour.
  
• The defendant is a student Pilot trainee, and undertakes pilot training with the Civil Aviation. On 27 January 2005 he sat for his exam and he is preparing to fly as part of his training. He set for examination at the end or every month.
  

The Defendant is contrite and very remorseful for this offence. The Defendant was cooperative with the police and entered a guilty plea at the first instance to spare this young victim of giving evidence before the Court. This will be taken into account in his sentencing. He is a first time offender and has no previous convictions.

The defence relies on the case of Public Prosecutor v. Silas Pakoa, Criminal Case No. 53 of 2003.

However, the following statement made by the Court of Appeal in PP –v- Gideon [2002] VUCA 7 remains the principle authority in sexual offences:

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

The prosecution says the offence is a very serious offence committed by a young offender of 22 years of age at the time of the offending.

The Prosecution relies on the Public Prosecutor v. Willie Robert, Criminal Case No. 56 of 1997. The following are the aggravating factors in the present case:

• The age of the victim
• The pregnancy of the girl complainant.
  

The defence says that the girl complainant was not a virgin at the time of the offending and she made sexual advances to the Defendant. At some stage the Defendant refuses to have sex with her until February 2004.

Whatever the conduct of the complainant girl before the sexual intercourse the consent of a minor girl for sexual intercourse is not a defence as a matter of law. That is the position in the present case.

In this case, the facts and surrounding circumstances call for immediate custodial sentence. The custodial sentence is necessary for a variety of reasons:-

• First to mark the gravity of the offence.
  
• Second to emphasize and mark public disapproval of it.
  
• Third to serve as a warning to others not to commit some type of offence.
  
• Fourth to punish the offender.
  
• The last but not the least is to protect women and girls.
  

The Defendant Frederick Kalterikia is sentenced to 2 years imprisonment. This sentence is to be increased to 3 years imprisonment in reflecting the aggravating features.

The sentence of 3 years is to be considered in the light of the mitigating factors. The sentence of 3 years is to be reduced by 12 months to reflect the Defendant’s guilty plea. The outstanding balance of sentence is 2 years or 24 months. A custom ceremony was done by the Defendant’s family under custom in accordance with section 199 of the CPC [CAP. 136]. The balance of sentence of 2 years is further reduced by 6 months to reflect the custom ceremony. The Defendant is sentenced to 1 year and 6 months.

Is it appropriate for this sentence to be suspended in the circumstances of the present case?

The defence relies on the case of PP v. Silas Pakoa, Criminal Case No. 53 of 2003.

Although the Defendant Silas Pakoa was sentenced under Section 97(2) of the Penal Code and his sentence was suspended, the facts in re. PP v. Silas Pakoa are different and must be distinguished from the present case.

This case must be considered on the basis of its own facts. The victim and the Defendant are cousin-brothers. The Defendant is undertaking pilot training at Vanuatu Civil Aviation. He is still undertaking that training scheme at the time of his sentence. I am informed that he sets for examinations at the end of each month. If the Defendant is imprisoned, it would jeopardize his future career.

It is said the complainant girl took condoms to school and showed them to the boys at school on different occasions. She made sexual advances to her cousin-brother, the Defendant.

I am also told that she did not care when the Defendant told her that she could not have sex with her before the sexual intercourse occurred in February 2004.

I am also informed that the victim is now heavy with a child. She has the support of his brothers and her mother and she is willing to return to school after the pregnancy and delivery of her baby.

On the basis of the above information material, I decide to suspend the sentence of 1 year and 6 months. The Defendant, Frederick Kalterikia is sentenced to 1 year and 6 months suspended for a period of 3 years. The nature of the suspension of sentence is explained to the Defendant. He agrees he understands it and that if he re-offends before the end of the 3 years, his sentence of 1 year and 6 months will be re-activated.

The Defendant has 14 days to appeal.

DATED at Port-Vila this 10^th day of March 2005

BY THE COURT

Vincent LUNABEK
Chief Justice