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Public Prosecutor v Ansen [2021] VUSC 217; Criminal Case 2312 of 2020 (2 September 2021)

IN THE SUPREME COURT OF Criminal

THE REPUBLIC OF VANUATU Case No. 20/2312 SC/CRML

(Criminal Jurisdiction)

BETWEEN: Public Prosecutor

AND: Lelen Leleny Ansen

Defendant

Date: 2 September 2021

By: Justice G.A. Andrée Wiltens

Counsel: Ms B. Ngwele for Public Prosecutor

Mr L. Moli for Ms K. Karu for the Defendant

Sentence

1. Introduction
   

1. Mr Leleny pleaded guilty to two charges of sexual intercourse without consent, and a charge of incest. These are extremely serious charges.
   

2. Facts
   

2. At the time of the offending Mr Leleny was 32 years old and married to Delilah Leleny. They had 3 school-aged children, including 14-year old ML.
   
3. On a day in September 2020, ML was not feeling well and so she was resting in bed. Her father entered her room and told her that he would give her a massage to make her feel better. He commenced by touching her breast indecently. He then took off all her clothes. ML was scared and wanted to cry out, but her father put his hand over her mouth tightly to prevent her doing so.
   
4. He next kissed ML on her lips, her breasts and then on her vagina. He then penetrated her vagina with his penis, which caused ML pain. He stopped after ML indicated that it was too painful, but by then ML was bleeding heavily and unable to stand up properly due to the pain. Prior to leaving the bedroom, Mr Leleny instructed her to not tell anyone what had occurred.
   
5. On another occasion in 2020, ML overheard her father telling her mother that he wanted to have sexual intercourse with both mother and daughter. However, both refused. Mr Leleny then took out a bush knife and threatened them that he would kill them both if they did not allow him to have sex with them.
   
6. He took them to a separate house and took off their clothes. He instructed ML to watch while he first had sexual intercourse with Delilah, who did not consent to what was occurring. Then he made Delilah sit down and watch him have sexual intercourse with ML. Prior to the sexual intercourse, Mr Leleny made ML lie down before kissing her breasts, her vagina and her lips. He then penetrated her vagina with his penis.
   
7. When finished, Mr Leleny apologised to ML and Delilah. He also warned them to not tell anyone about what had occurred.
   
8. There was a third incident in March 2021. At the time ML was asleep. She woke up to hear her mother speaking angrily and calling for ML to go into her parent’s bedroom. When ML entered she saw that her parents were both completely naked. ML turned around to leave but her father stopped her. He threated to whip her if she left. Accordingly, ML remained.
   
9. Mr Leleny then removed ML’s clothes and made her lie down beside her mother on the bed. He licked her vagina and her breasts, and kissed her on the lips. He then penetrated her vagina with his penis, while Delilah observed. Mr Leleny then also had non-consensual sexual intercourse with Delilah, in the presence of ML. Again he apologised when he had finished and instructed both of them to not tell anyone about what had occurred.
   
10. Mr Leleny elected to remain silent when interviewed by the police.
    
    100. Sentence Start Point
         
    11. The sentence start point is to be assessed by having regard to the maximum sentence available for this offending, and factoring in both the aggravating and mitigating aspects of the offending.
        
    12. The maximum sentence for all 3 charges is life imprisonment.
        
    13. There are aggravating factors to this offending, which include:
        
        • - The repeated nature of the offending – there are 5 separate sexual offences involving two complainants over a period of some 16 months;
          
        • - The breach of trust x2 – he was the husband of Delilah and the father of ML;
          
        • - The offending occurred at night in their home - where both complainants should have been able to feel safe and secure;
        • - The offending was pre-meditated;
          
        • - The youth of ML, she being only 14 years old at the time and having no previous sexual experience;
          
        • - There were additional indignities involved – the kissing and licking of ML: on the lips, on her breasts and her vagina. Additionally, it is aggravating that a mother should be made to watch her daughter being raped by her father; and for a daughter to be forced to watch while her mother is raped by her father;
          
        • - ML was threatened more than once, and a lethal weapon was used to reinforce the threat;
          
        • - No protection was used, thereby exposing both complainants to sexually transmitted disease and/or unwanted pregnancy;
          
        • - The effects on ML – she remains in fear of her father and does not feel safe at home. She is ashamed of what her father did to her and is scared to walk around in the community. She feels her friends will tease her. She said: “I feel that my life is not safe because Daddy threatened me with a knife and I will never forget what happened”; and
          
        • - ML was prevented from crying out on the first occasion, and both complainants were instructed to not tell what had occurred on the other 2 occasions.
          
    14. There are no mitigating aspects of the offending.
        
    15. I adopt a sentencing start point of 16 years imprisonment, on a global basis for all 3 charges concurrently. I do so despite defence counsel’s submissions indicating a much lower sentence start point being appropriate. I accept the prosecution submission that this offending is at a similar level to that described by the Court of Appeal in Obed v PP [2019] VUCA 42 as warranting a starting point of this magnitude.
        
    4. Personal Factors
       
    16. Mr Leleny pleaded guilty to the charges at an early stage. However, the evidence against him was very strong, and accordingly guilty pleas were really his only option. Despite that, I accept that his pleas indicate that he has accepted his wrong-doing, and it has also saved Court time and expense. As well, the pleas have meant that neither Delilah not ML have had to give evidence to a crowd of strangers about the indignities they suffered at the hands of Mr Leleny. Accordingly, for Mr Leleny’s prompt pleas, I reduce the sentence start point by 33%.
        
    17. He is unemployed and maintains the family by his farming and deep sea diving.
        
    18. Mr Leleny has no previous convictions. He indicated to the PSR writer that he was remorseful. He explained his offending was due to his addiction to pornography.
        
    19. Mr Leleny has performed a custom reconciliation ceremony involving his community and the complainants. Significant gifts were bestowed and apologies were issued. The PSR makes it clear that his apologies were accepted by Delilah at least. She considers there is hope for a change in his behaviour.
        
    20. Mr Leleny’s Chief speaks highly of him. He appointed him Chairman of the Village Council, and he considers Mr Leleny is a hard-worker who faithfully fulfills his duties towards the Chief. He also reports that Mr Leleny is an Elder in the local Church.
        
    21. For these personal mitigating factors, I reduce Mr Leleny’s sentence start point by a further 4 months.
        
    5. Sentence
       
    22. Mr Leleny is sentenced to 10 years 4 months imprisonment on all 3 charges concurrently. He has been remanded in custody since the time of his arrest. Accordingly, it is appropriate to back-date the start date of the sentence to 28 May 2021.
        
    23. The end sentence will not be suspended. This offending is too serious and there are numerous precedent authorities indicating that suspension is almost always inappropriate where sexual offending is involved. The authority of PP v Gideon [2002] VUCA 7 demonstrates this.
        
    24. All details leading to the identification of ML’s identity are permanently suppressed.
        
    25. Mr Leleny has 14 days to appeal the sentence.
        

Dated at Port Vila this 2nd day of September 2021

BY THE COURT

.................................................

Justice G.A. Andrée Wiltens