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Public Prosecutor v Kalsef [2005] VUSC 77; Criminal Case No 030 of 2005 (10 June 2005)

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

Criminal Case No. 30 of 2005

PUBLIC PROSECUTOR

–v-

PAUL KALSEF

Coram: Justice P I Treston

Mr. Kalmet for Prosecution
Mr. Kausiama for Accused

Date of Sentencing: 10 June 2005

SENTENCE

Mr. Paul Kalsef, you appear in Court today having pleaded guilty to a charge of indecent assault. The maximum sentence that could be imposed is ten years imprisonment. This happened on 15 August 2002 quite sometime ago when you were only 15 years of age. You and your cousin has bought some liquor and you were intoxicated. You approached the seven year old victim who was on the children's swings at the Seafront with her brother. It seems that like a bully you cornered her by the railings. You then touched her on her vagina through her clothing. She ran towards her father who was near by. He chased you and your cousin. You eluded that chasing but subsequently surrendered to the police and admitted the offence.

The Prosecutor submits that a term of imprisonment is appropriate in the vicinity of nine months but concedes that such a sentence in these circumstances could be suspended. It seems that you were remanded in custody for two weeks at the time of the investigation.

On your behalf, your lawyer submits that there are mitigating factors because you are a first offender and you have pleaded guilty at the first opportunity and you apologize to the Court and to the victim for what has happened and to physically send you to jail would be risky for you as a seventeen year old who would be required to mix with more adult and perhaps dangerous offenders. Your lawyers submits that a proper starting point for you is eighteen months imprisonment. Your lawyer also submits that such a sentence should be suspended.

I must hold you accountable not only for the trauma caused to the victim but also for the harm done to the community generally. I must denounce your conduct and deter you and likeminded offenders from committing offences like this. I must protect the community and particularly young girls who must be free to walk the streets of Port Vila without interference.

Sentencing generally involves a balance of aggravating and mitigating factors. The aggravating factors include the fact that the victim was very young at seven years of age and thus was particularly vulnerable and the fact that you bullied her and caused her fright and distress. By way of mitigation of course I take into account your young age of fifteen year at the time, your plea of guilty which has avoided the necessity of a very young victim undergoing the trauma of giving evidence in Court in front of strangers, the remorse and apology which you now demonstrate and the fact that you are a first offender and have a previously good character. You let yourself down on this occasion Mr. Kalsef particularly by taking alcohol at your very young age at the time. Your lawyer has quite properly recognized that the fact that you were effected at the relevant time by the voluntary consumption of alcohol is no way a mitigating factor.

I place the matter in the context of opportunistic offending and touching once through clothing. Of course, this event was a frightening experience for the young girl and no doubt the memory of it will live in her mind for sometime. Both lawyers, for the Prosecutor and for you, agree that a suspended sentence of imprisonment is appropriate. Luckily for you I also agree with that. You have family support here from your father, your mother and from your aunt and no doubt they will ensure that this sort of behaviour does not occur again.

In view of the circumstances and particularly the nature of the crime and your character, although I consider that a sentence of imprisonment is appropriate, I do not consider that is appropriate to make you suffer the penalty directly. I exercise my discretion under section 1 (a) of the Suspension of Sentences Act CAP 67. I consider that the appropriate starting point of this offence is nine months imprisonment, I immediately deduct one-third from that for the guilty plea which I have referred to and I deduct a further two weeks for the time that you were in custody at the time of this investigation. I thus today impose a sentence of five and a half months imprisonment against you. I suspend that sentence as I am able for a period of two years. That means that if you commit any other offence, a similar one or a different one, under the Penal Code Act within the two year period, the sentence of five and a half months will be immediately executed upon you and that will not be served at the same as the sentence of any new matter but will be added to any new sentence. So your future for the next two years is very much up to you with the help of your family. If you come back to Court within the two year period and are convicted of any offence against any act, you will go to jail.

You have 14 days to appeal that sentence.

Dated AT PORT VILA, this 10th day of June 2005

BY THE COURT

P. I. TRESTON
Judge