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Public Prosecutor v Kalsal [2007] VUSC 48; Criminal Case 54 of 2006 (11 May 2007)

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

Criminal Case No. 54 of 2006

PUBLIC PROSECUTOR

-v-

DAVID KALSAL

Mr. Lent Tevi for the Prosecution
Mr. Bartels for the Defendant

SENTENCE

This is the sentence of the Defendant, David Kalsal. The Defendant is charged with the offence of Indecent Assault, contrary to section 98(1) of the Penal Code Act and Attempted Rape, contrary to section 28 and 91 of the Penal Code Act [CAP 135]. He pleaded guilty to the offence of Indecent Assault and the prosecution entered a Nulli prosecution in respect of the offence of Attempted Rape. He is now sentenced for the offence of Indecent Assault, contrary to section 98 (1) of the Penal Code Act [CAP 135]. The brief facts as contained in the prosecution’s submission show that the defendant was 23 years old at the time of offending. On 29 August 2006, while the boy victim was with his mother in their garden, a friend of the victim boy called on him to see him. The boy went on to his friend. Then the boy saw the defendant and another family of his friend. The boy followed them and they went to their garden. Then the boy decided to go to his grand mother’s house. While the boy was walking towards his grand mother ‘s house, the defendant told him words to this effect " Sandy bai mi fuckem ass blong you nao?" when the victim boy heard those words he wanted to run but the defendant held him tightly and carried him into a bush. In the bush the defendant removed the boy’s trousers to his legs, and at the same time removes his trousers. The defendant, then, spit on the boy’s anus. He made the boy laid down on the ground and penetrated the boy’s anus. At that time the boy felt pain in his anus and he shouted, but the defendant did not come out off him. He penetrated the victim for some time. After penetration, the defendant came out off the boy victim. The boy cried and saw blood on his trousers. The defendant left the boy victim there and went away.

The victim went to his grand mother’s house, and he reported what had happened to him to his grand mother. After hearing what had happened to his son the boy’s mother went to the grand mother’s house and helps him walk down to the main village and brings him to the Vila central Hospital. At that time, the boy walked difficultly down to the main village, due to the effect of the assault on his body. The following are the aggravating features:-

▪ The age of the victim – 7 years old.

▪ The seven years old boy suffered physical damage on his body

The prosecution submits that the case of PP v. Kevin Gideon CA and PP v. Dick Poita CRC No. 9 of 2003 are the relevant case to be relied upon.

In mitigation, counsel for the defendant submitted that the defendant is 24 years old. He resides with his mother and father. He is a first time offender. He is charged with the offence of Indecent Assault against a child boy of 7 years. He pleads guilty. The defence Counsel submitted that the defendant gave account to him on what happened to him which was confirmed by the pre-sentence report. The defendant has a major relationship with woman with whom he had a child boy. In May 2006, after the birth of the child, the mother of the child return to her Island (Mosso Island) and took the child with her. It is said when that relationship broke up, the defendant felt frustrated. He felt anger. He was despressed and stressed. The defendant’s father used to speak to the defendant in a certain way with strong words to give him directions but not discipline. It was said the directions stressed the defendant. It is said the defendant is a class 5 school leaver. He feels inadequate in perusing an occupation. Currently while waiting for his sentence, he voluntarily attended literacy classes conducted at the center. He does gardening. He has an interest in cooking. The defendant feels that he is illiterate because of his education.

It is said the defendant felt a certain amount of peace when he committed the offence. He felt that he became freer in his mind. The defence counsel acknowledges that it is inappropriate to pray on young people. It is not a way to get away from the pressure from his father. The defendant told the psychologist that he had no sexual enjoyment from the act he committed on the child.

The defence counsel submitted that in a forensic sense, it is interesting to what the defendant said. The defendant is a man who internalise a lot. He does not talk to express his feelings. He feels great remorse and sorry.

The defence submitted that the case of Dick Poita is a different case. It cannot be applied to the present case. It is submitted that this case is not a case of Sexual gratification. The present case is a case about inappropriate behavior to deal with distress and oppression. The defendant has problems within himself. There was no custom ceremony performed.

Although, the present case can be differentiated with the case of PP V. Poita in that the age of the victim is at its lower scale (7 years) whereas in the Poita case, the victim was 12 years of age and the victim suffered some injuries and further that it was about sexual gratification whereas the present case is a case on how the defendant dealt with his distress and oppression in an inappropriate behaviour, it must be emphasized that it is still the behaviour of an adult person "at the expense of the young and vulnerable people". The law applied by the court of appeal in the judgments of Gideon and Poita and other cases is the law to apply in the present case.

It may be true that the defendant internalises his feelings of distress and oppression but it is not a justified excuse to expulse or externalize his distressed and oppressed feelings "at the expense of the young and vulnerable people" such as the child boy of 7 years in this case. It is a serious crime. Apart from his depression and anxiety the defendant is a healthy and physically well built man. He does not have any mental disorder as transparent from the psychological report dated 16 April 2007.

The abuse on the child, young and the vulnerable people must always be vindicated by a sentence of imprisonment by the Courts, save in only exceptional circumstances.

The appropriate sentence in this case is 3 years imprisonment. The terms of 3 years shall be increased with the aggravating features of the very young age of the child and the injuries suffered by the child to 4 years.

This term of 4 years imprisonment is to be reduced to 3 years imprisonment taking into account of the following mitigating features:-

▪ guilty plea
▪ a first time offender
▪ remorseful
▪ problem with himself

The defendant has been remanded in custody since 31 August 2006 until the date of his sentence. The total period of remand is 8 months which is to be taken out from the total sentence of 3 years imprisonment. That period is now deducted from the sentence of 3 years imprisonment.

The defendant David Kalsal is sentenced to 2 years and 4 months imprisonment.

I have considered the situation of the defendant in this case and I reach the conclusion that the sentence of 2 years and 4 months shall be suspended for a period of 2 years.

In addition to the suspension of his imprisonment sentence of 2 years and 4 months, I make a Supervision Order against the defendant, David Kalsal, for a period of 12 months pursuant to section 58 G of the Penal Code Act (as Amended) [CAP 135] so that appropriate rehabilitation program be provided to him for 12 months during the suspension period of his imprisonment sentence.

DATED at Port Vila, this 11th day of May 2007.

BY THE COURT

Vincent LUNABEK
Chief Justice