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Public Prosecutor v Langa [2018] VUSC 258; Criminal Case 2432 of 2018 (3 December 2018)

SENTENCE

Introduction

1. Miss Kathia Langa, 16 years old in 2015 was indecently sexually abused by the defendant Andrew Langa on several occasions between 2005 and 2007 when she was attending Class 3 and 4. The defendant started having sexual intercourse with her when she attended Class 7 and continued to do so until January 2015. She then reported the matter to the police.
   
2. The defendant was charged with 1 count of act of indecency (section 98A) and with 1 Count of act of indecency without consent ( section 98 (a)). He pleaded guilty to both charges.
   
3. The defendant now appears for sentence. The maximum penalty for the section 98A offence is 10 years imprisonment and for act of indecency without consent is 7 years imprisonment.
   

The Facts

4. The defendant is the grandfather of the complainant. He is now 63 years old. The complainant was only 8 years old in 2007 when the incidents started to occur. The complainant’s father and mother were married but have separated. The complainant therefore lived with her grandfather at Mele Village and grew up with him since she was 6 years old. In her early childhood her grandfather would touch her private part with his finger at nights. There were times the defendant would make her touch his penis. Those actions continued until the complainant attended year 7 when the defendant started having sexual intercourse with her. The last time he had intercourse with her was on 1^st January 2015 ( New Years Day). She had had a couple of wine and went off to sleep. She woke up completely naked and finding the defendant sleeping beside her. She realized what her grandfather was doing to her was wrong. As a result she left the house and went to live with her adoptive parents on Ifira Island. These facts are accepted by the defendant and are not in dispute.
   

Aggravating Features

5. Mr Langa the features that add seriousness to your offendings are the great age difference yourself and the complainant, the abuse of trust placed on you as grandfather with responsibility of care and protection of the child in circumstances where her parents were separated, the repetition of the offendings on or more than 8 years since 2007, and the offendings occurring within the confines of your home where the complainant was supposed to feel safe.
   
6. Considering all these features together with the nature of offences committed, I am now sentencing you to 6 years imprisonment as the starting point for the offences of act of indecency with a young person. And for the offences of act of indecency without consent, I sentence you to 3 years imprisonment as the starting point. There is no uplift. These sentences are to run concurrently. In effect you are to serve an imprisonment term of 6 years.
   

Matters Personal

7. The Probation Service has not produced any report on your behalf. But I note from defence submissions and the facts that you were 60 years old in 2015, now probably 63 years old and a person of good character with no previous convictions. You appear to have some medical conditions but no medical reports to confirm them.
   

Mitigating Factors

8. I note you performed substantial custom reconciliation ceremony and the paramount chief of Mele witnessed it and filed a verification report. This shows remorse on your part.
   
9. For all the matters personal to you and your mitigating factors, I deduct your 6 years by 12 months leaving the balance to be 5 years imprisonment.

Guilty Plea

10. You pleaded guilty at first opportunity. You are entitled to 1/3 reduction which means that 5 years are reduced by 16 months or 1 year and 4 months.

End Sentence

11. You are convicted and sentenced to an end sentence of 3 years and 8 months imprisonment.

Suspension

12. The prosecution submitted your sentence should not be suspended but defence submitted it should be. I accept the defence Counsel’s submission.
    
13. The reasons are first, there was a delay first in reporting the offendings to the police. While they occurred in 2007 the claimant only reported in April 2015 some 8 years later. Then the charges were laid in December 2017 almost 2 years later. And you entered pleas in October 2018 some 10 months later.
    
14. Secondly the offendings you have admitted to involved mere touching and skin to skin contacts and nothing beyond that. These make your offendings fall on the lower end of the scale for these types of sexual offendings.
    
15. Thirdly, from 2015 to the date of admission you have not committed the offences again or any others.
    
16. I consider these matters fall within section 57 ( 1) (a) ( i) (ii) and ( iii) of the Penal Code Act [ CAP 135] as amended.
    
17. For those reasons, I order that your end sentence of 3 years and 8 months imprisonment shall be suspended for a period of 2 years on condition that you do not reoffend against any Act, Regulation, Rule or Order. If you do, your sentence will be activated and you will go to prison for the period imposed.
    

Additional Sentence of Community Work

18. I accept defence counsel’s submission that the Court should impose an additional sentence of Community work. This is to ensure consistency and to mark the Court’s disapproval of your offendings, to deter you and other likeminded persons, and to protect the young and vulnerable members of the society. I therefore sentence you to 80 hours of community work. You must perform these within 12 months from the date of this sentence. And you must report to the Probation office as soon as practicable, and not later than 72 hours from the date of this sentence.

Right of Appeal

19. If you wish to appeal against this sentence you have the right to do so within 14 days from today.

DATED at Port Vila this 3^rd day of December, 2018

BY THE COURT

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

Oliver Saksak

Judge