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Public Prosecutor v Norman [2005] VUSC 95; CRC 047 2005 (5 August 2005)

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

Criminal Case No. 47 of 2005

PUBLIC PROSECUTOR

-v-

KALFAU NORMAN

Mr Lent Tevi for the Public Prosecutor
Mr Christopher Tavoa for the Defendant

SENTENCE

This is the sentence of the Defendant, Kalfau Norman. The Defendant was charged with one count of Indecent Assault, contrary to section 98(1) of the Penal Code Act [CAP. 135]. The Defendant pleaded guilty and convicted of the offence as charged.

The brief facts are contained in the prosecution submissions of 5^th August 2005. They can be summarized as follows:

The Defendant is from Nguna Island and he lives in Port-Vila. On 3 July 2005, the Defendant visited his girl friend at her parents’ home. He spent the night of 3 July 2005 with her at her parents’ home.

It was on that 3 July 2005 at night that the Defendant committed the offence of indecent assault on a child girl of 7 years of age.

A medical report was produced. The medical examination was carried out on 5^th of August 2005. It shows a penetration of vagina by finger and oral copulation of genitals of the victim by the Defendant by way of sucking her private part. There were no physical injuries sustained.

Indecent assault is prohibited by section 98(1) of the Penal Code Act [CAP. 135] in this way:

“98(1) No person shall commit any act of indecency with any other person under the age of 13 years.

Penalty: Imprisonment of 10 years.”

The facts of this case show that the following aggravated features were present:

• The very young age of the child girl of 7 years of age;
  
• .The Defendant is an adult person of 28 years of age;
  
• The Defendant had kissed the girl while she was asleep. By doing this, she was awaken, the Defendant then lifted up the child dress and licked her vagina and he then pushed his finger inside her vagina. The combination of these facts constitutes aggravated features of special nature;
  
• The offence was repeated twice that same night;
  
• There is a breach of trust on the Defendant by the girl victim as the girl knows the Defendant well;
  
• The child girl is afraid of the Defendant and refuses to see him. There is likely that a continuing psychological trauma will be on the child.
  

The Defendant is unemployed. He had an active professional experience before with the ANZ Bank and two (2) other private companies by holding positions of seniority within those companies.

The Defendant is living in a de facto relationship with a de facto partner at Seven Star area, Vila. They have a son of 4 years of age who attends Ecole Colardeau School.

The Defendant’s de facto partner is employed by Chrissy Beauty Saloon. The Defendant wishes to pursue studies in Agriculture. He is currently looking for job opportunity.

The Defence Counsel submits that the following constitute mitigating factors for the Defendant.

• The guilty plea
• The willingness to perform custom ceremony
• The time already spend in custody
  

The guilty plea is the only mitigating factor in this case.

The willingness to perform custom ceremony is not a mitigating factor as custom ceremony was not performed. There were no steps taken by the Defendant for the Court to consider adjourning the sentence submissions for the custom ceremony to be performed in accordance with section 119 of the Criminal Procedure Code Act [CAP. 136].

The time spent in custody is not a mitigating factor as the Court is obliged to deduct the corresponding period from the total sentence.

The offence of Indecent Assault is a serious offence. The present case is a very serious one as the victim is a child girl of 7 years of age. The Court is informed that notwithstanding the fact that the victim child sustained no physical injuries on her body, she was still afraid of seeing the Defendant. There is likely a continuing psychological trauma in the mind of the little girl.

To sentence the Defendant, I need to take into account of the aggravating features and balance them with the mitigating ones.

The principle judgment in this type of offending is the judgment of the Court of Appeal in PP v. Dick Poita, Criminal Appeal Case No. 9 of 2002. I apply that judgment in this case.

The circumstances of this case show that a custodial sentence is warranted. I cannot do better than remind the Defendant on what the Court of Appeal and this Court repeatedly and timelessly remind the defendants sentenced on offences of sexual nature on women and girl child.

“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.”

There is constantly a need for the Court to protect the weakened and the vulnerable.

The starting point for this offending is 7 years imprisonment. The 7 years imprisonment is to be increased to 9 years to reflect the aggravating features.

I now balance the term of 9 years with the mitigating features. In the present case, there is only one mitigating factor, which is the guilty plea at the first opportunity. I assess this to be of 3 years.

The Defendant is sentence to 6 years imprisonment. I am informed he has spent 1 month (30 days) from 6/07/05 to 5/08/05 into police custody. This period of 30 days will be deducted in his favour.

The Defendant is ordered to serve a term of imprisonment of 5 years and 11 months with immediate effect.

DATED at Port Vila this 5^th day of August 2005

BY THE COURT

Vincent LUNABEK
Chief Justice