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Public Prosecutor v Kalokis [2004] VUSC 49; Criminal Case 017 of 2004 (6 September 2004)

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

Criminal Case No. 17 of 2004

PUBLIC PROSECUTOR

-v-

BEN KALOKIS

Coram: Chief Justice Vincent LUNABEK

Ms. Helen Wodak for Public Prosecutor
Mr. Peter Bartels for the Defendant

SENTENCE

This is the sentence of the Defendant, Ben Kalokis. The Defendant is charged with 1 count of Unlawful Sexual Intercourse with the complainant girl contrary to sections 28 and 97 (2) of the Penal Code Act [CAP 135].

The Defendant pleaded guilty and convicted of the count as charged.

The summary of the facts are as follows: -

On 1 and 30 May 2001, the Defendant attempted to have sexual intercourse with the Complainant. The Complainant girl was born on 21 June 1986. She was 14 years of age at the time of the attempted unlawful sexual intercourse occurred on two (2) occasions.

The first occasion was 1 May 2001. The victim was walking home after a church concert. After she had turned into a small road, she heard a man whistle to her and she looked up and saw the Defendant who motioned to her to come and join him. When she went and joined him, he told her to follow him. The girl was not afraid of the Defendant because they are related. The Complainant followed the Defendant to the bush. The Complainant started to feel afraid. When they stopped, the Defendant put his hands inside her T-shirt and touched her breasts. The Complainant did not say anything to the Defendant. The Defendant then told the Complainant to take off all her clothes. The Complainant did so and was naked. He told her to lie down and the Complainant lay down on the ground. The Defendant put his T-shirt around his neck and took off his trousers and lay down on top of her. The Defendant attempted to penetrate the Complainant’s vagina with his penis, but her vagina was too small. The attempted intercourse was very painful for the Complainant and she told him enough. The Complainant felt her vagina and it was wet. The Defendant and the Complainant put their clothes back on and went back. The Defendant told the victim not to tell anyone.

The second occasion was on 30 may 2001. The Complainant girl had been studying at school, until approximately 7.30pm. The Defendant had been waiting for her to finish and they walked home together (there had been no prior arrangement to do so). She asked him where he was going after he took her home. He told her he was going to wash and then go to sleep. He then told her to put her school bag away and then to go and find him in his house. She did this. The Defendant touched her breasts and told her to take off her trousers. After she had done so, he told her to lie down in a long chair. He then took off his trousers and put his T-shirt around his neck. He told her to open her legs and then lay on top of her. He tried to force his penis into her vagina but could not. This was very painful for the girl, she told him enough and he came out. She felt her vagina and it was wet. When she came home, her mother hit her and the she told her mother what had happened.

The Defendant was questioned by police on 26 September 2001 and was co-operative. He admitted that he had attempted to have intercourse with the Complainant on two occasions in May 2001, but found that her vagina was too small.

Two medical reports of Dr Imelda Cabatuando are tendered. The report of 31 May 2001 found that the Complainant girl was assaulted. The report of 7 June 2001 found that the Complainant's vaginal swab yielded no pathological growth.

The Defendant was 21 years old at the time of offending. He is now 24 years.

The defence says this case is a type of case such as Romeo and Juliette loving stories against the position of the parents.

The Defendant has performed a custom ceremony to the Complainant and her family to show his remorse and reconciliation towards the incidents of May 2001. A letter of 18 August 2004 was produced to the Court to this effect. The Defendant and the Complainant girl are now living together as husband and wife.

Sections 28 and 97(2) of the Penal Code Act constitute the relevant provisions and they read as follows:-

"ATTEMPTS

28.(1) An attempt to commit a criminal offence is committed if any act is done or omitted with intent to commit that crime and such act or omission is a step towards the commission of that crime which is immediately connected with it, or would have been had the facts been as the offender supposed them to be.

(2) An attempt shall be committed notwithstanding that complete commission of the offence was impossible by reason of a circumstance unknown to the offender.

(3) Acts committed in mere preparation of an offence shall not constitute an offence.

(4) The commission of an attempted offence shall constitute an offence punishable in the same manner as the offence concerned.

(5) The criminal responsibility of a person committing an attempted offence who voluntarily withdraws from the attempts before the offence has been committed shall be diminished."

"UNLAWFUL SEXUAL INTERCOURSE

97.(2) No person shall have sexual intercourse with any girl under the age of 15 years but of or over the age of 13 years.

Penalty: Imprisonment for 5 years.

(3) It is no defence to a charge under this section that the girl consented or that the person charged believed that the girl was of or over the age in question.

(4) The girl shall not be charged as a party to an offence under this section."

The Public Prosecutor submits that the only reason the intercourse did not occur on the two occasions it was attempted by the Defendant, was the Complainant's vagina was too small. This made a complete commission of the intercourse impossible but was a circumstance unknown to the offender; s 28(2). These attempts are punishable in the same manner as unlawful sexual intercourse under s 97(2) and the criminal responsibility of the defendant is not diminished under s 28 (5).

The Prosecution relies on the case of PP v. Gideon [2002] VUCA 7 (CR Appeal Case No. 3 of 2001). The aggravating factors are set out as follows:-

(a) the age of the complainant girl.

(b) the breach of trust because of the domestic relationship which existed.

(c) the offending occurred more than once.

(d) she was specifically told not to tell anyone.

(e) the age of the defendant at the time of the offence was 21.

The offence of Unlawful Sexual Intercourse under Section 28(4) shall constitute an offence punishable in the same manner as the offence occurred.

The maximum penalty for this office is 5 years imprisonment. The facts and surrounding circumstances of this case show that this is a serious offence. The starting point of this sentence is 3 years imprisonment. There are aggravating features. The sentence of 3 years must be increased to 4 years to reflect the aggravating factors.

The sentence of 4 years imprisonment is the appropriate sentence for such a case. I have to balance the sentence with the mitigating features.

This sentence is to be reduced by ⅓ to take account of the Defendant’s guilty plea. The balance of the sentence will be further reduced by ⅓ to take into account of the custom ceremony performed by the Defendant in accordance with Section 119 of the Criminal Procedure Code Act [CAP 136]. The outstanding balance of the sentence is 6 months.

The Defendant is sentenced to 6 months imprisonment.

The Prosecution relies on the judgment of the Court of Appeal in Gideon. They say the Court must protect the community in condemning this young man who abuses the Complainant girl of 14 years of age. He cannot obtain sexual gratification on the expense of the weak and the vulnerable.

The defence submits that this case is a Romeo & Juliette type of case. It is one of the most extreme of cases that suspension could be contemplated as envisaged in the case of Gideon. The Defendant and the victim girl are now aged 24 and 19 respectively and live together as husband and wife.

This criminal charge is about an Attempted Unlawful Sexual Intercourse. There is no force or violence used by the Defendant apart from the fact she was told by the Defendant not to tell anyone.

The Defendant attempted to penetrate the girl’s vagina with his penis on two (2) occasions but he could not. On the two (2) occasions, the girl felt it was painful and told the Defendant to stop and he stopped.

There was no injury or damage on the body of the Complainant girl. The Defendant and the Complainant are now living together as husband and wife, despite the charge against the Defendant. This is a type of case that suspension could be contemplated as envisaged in the judgement of the Court of Appeal in the case of PP -v- Gideon [2002] VUCA 7 (Criminal Appeal Case No. 03 of 2001).

Before I suspend the 6 months term of imprisonment, I inform the Defendant of the seriousness of his conduct. I inform him also that he cannot obtain sexual gratification on the expense of the weak and vulnerable person such as the Complainant girl in this case. It is the duty of the Court to protect the community in condemning him (the Defendant) for his offending with a custodial sentence.

However, the facts and surrounding circumstance of this case as set out above warrant that the term of imprisonment of 6 months be suspended.

The sentence of 6 months imprisonment imposed on the Defendant, Ben Kalokis, is suspended for 3 years.

I finally explain to the Defendant and he understands that he must not re-offend again. If he re-offends during the period of the 3 years suspension, he will be arrested and re-sentenced for 6 months imprisonment. In addition, he will be dealt with in respect to his new offending as set out under the relevant provisions of the Suspension of the Sentences Act [CAP. 67].

Dated AT PORT VILA this 6^th day of September 2004

BY THE COURT

Vincent LUNABEK
Chief Justice