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

Criminal Case No. 122 / 2011

PUBLIC PROSECUTOR

V

KALPAT TASERE

Hearing: 14 December 2011
Before: Justice Robert Spear	

Appearances: Tabisa Harrison for the State
Francis Tasso for the Accused

SENTENCE

1.	Kalpat Tasere, you are for sentence having been found guilty of the following charges:

•	Count 1	kidnapping. 
•	Count 2	committing an indecent act with a young person 
•	Count 4 	sexual intercourse without consent (digital penetration)
•	Count 5 	sexual intercourse without consent (Rape)

2.	Those charges were the subject of the trial that took place early last month. There was an additional charge (Count 3) of unlawful sexual intercourse to which you entered a plea of guilty. That was, however, an alternative to Count 5 (sexual intercourse without consent) and accordingly no conviction is entered on Count 3. It is of significance, however, that right from the outset you admitted having sexual intercourse with the 12 year old complainant and that admission carried forward through to the trial where you pleaded guilty to that charge. I accept that your plea of guilty to that charge was at the first available opportunity. 

3.	The detailed facts relating to this offending are found in the decision given on 3 November 2011. A summary has also been provided by the prosecutor and, to a large extent that encapsulates exactly what occurred that day. 

4.	On 7 July 2011, you were working as a bus driver in Port Vila. At some stage during the afternoon, you stopped beside this 12 year old girl who was waiting for her mother outside the New Covenant Church at Anamburu. You invited her to get into the bus to come for a ride with you but she refused. You got out of the bus, went around to her, took her by the hand and then forced her into the bus by pushing against her back. You then drove up to the Ellouk Plateau where you told her to get undressed. 

5.	Right from the outset, the complainant was frightened as to what was to become of her and she was frightened of you. She did what she was told. She took off all her clothing except her bra. In this relatively deserted spot, you came around the outside of the bus, you took out your penis in front of her, spat on it, started to masturbate and then tried to get her to hold on to it as well. She refused to do so. 

6.	There was evidence from workmen, who saw part of what happened in the bus, that you also took her by the hair and trying to force her head down towards your penis obviously so that you would receive oral sex from her. The workmen said that she resisted and fought against you. While there was no specific charge in that respect, it was indicative of the interaction between the two of you and the resistance that the complainant showed when she could. You followed this up by inserting your fingers into her vagina and then you lay on top of her and raped her. 

7.	I explained, in the decision given on 3 November 2011, exactly what constituted the kidnapping, the indecent act, the sexual intercourse by digital penetration and the sexual intercourse by penal penetration or rape. It is unnecessary for me to repeat this. Simply put, however, you subjected this young girl, a complete stranger, to a terrifying ordeal indeed. Your conduct that day was deplorable because it showed you had absolutely no respect for that young girl and that you were only thinking about the need to satisfy your own sexual cravings. You used her and then you discarded her. Fortunately, she raised the alarm and you were quickly tracked down and apprehended by the police. 

8.	You claimed, right from the outset, that this was consensual sexual activity. I rejected that as a possibility and I have explained in my decision why it was rejected. Simply put, it was ridiculous to contemplate that what occurred that afternoon was consensual sexual activity. 

9.	The aggravating features to this offending are obvious. They need to be considered around the lead charge of sexual intercourse without consent by penal penetration (rape). That offence, of course, carries a maximum term of imprisonment of life imprisonment. The aggravating features to this offending are the significant disparity in age between yourself and the complainant - you at 35 or 36 and she at 12. She was a young vulnerable girl of only 12 years and you took advantage of her by using your strength and your maturity to overpower what resistance she might have been expected to raise. You abducted her from a safe place in public and took her to a deserted place. You subjected her to the indignity of watching you masturbate and then you tried to get her to hold on to your penis to continue the act. There was the added indignity of inserting your fingers into her vagina before you raped her. All these can properly be treated as aggravating features to the lead charge of sexual intercourse without consent by penal penetration. 

10.	This is offending that has to be considered as being very serious offending of its type. It is offending that requires a firm response by the Court so that you are left no doubt at all how serious the offending is and those who hear about this case will also understand how serious it is. I mention this because I am curious, to say the least, at the content of the pre-sentence report that ends up essentially with a recommendation of supervision coupled with a suspended term of imprisonment.

11.	You have support from leaders in your community. They have indicated that it would be appropriate for you to be released on a community programme of some nature so that they can work with you and help you move through what has happened. What seems to be forgotten is that this was a sexual attack on a 12 year old girl who remains a victim. I cannot imagine how you would have felt if it was your young daughter who was raped that day. But that is not particularly relevant. 

12.	Even in the pre-sentence report, your expression of remorse for the young girl appears to be somewhat muted. The only comment recorded is simply that you feel sorry for the complainant. The probation officer, however, observed that you showed "insight in to your offending" by stating that what you did was wrong and that you forgot that you had a family. But, of course, that does seem to overlook the reality that there is a victim of your offending. You have left a young girl in a terrible state because of your offending. 

13.	There seems to be little recognition given by all those who have contributed to the material presented to me, with the exception of the prosecutor, about the harm suffered by this young girl. You have dealt her a life-long sentence. It is often said that the sexual abuse of young girls and boys robs them off their childhood. We know, from abundant experience of dealing with cases such as this, that young girls who are sexually abused will most probably have difficulty forming relationships and being able to trust others as they develop into adult hood. That is why we call it a life sentence. That is why I say that you have robbed her of her childhood. 

14.	I need to state this with clarity in order to emphasise that this is serious offending indeed and it cannot be contemplated that a non-custodial sentence will be imposed. Unfortunately, indeed regrettably, the pre-sentence report contains a recommendation of suspended imprisonment and supervision. Furthermore, Mr Tasso, in his submissions, supports that recommendation and urges the Court to adopt it. This outcome would have been discussed with you. No doubt, your family will be aware of it and they would have some hope that you would be walking out of Court today with a suspended term of imprisonment and supervision. If you have been given that hope or expectation then that is most unfortunate indeed as the hopes and expectations of both your family and you will have been raised needlessly. 

15.	The law in this country has been clear and consistent for many years. In particular, I refer to the Court of Appeal decision (cited by the Prosecutor): PP v Scott [2002] VUCA 29; CA 02-12 (24 October 2002). In that decision the Court of Appeal said:-

"A number of decisions were referred to in the Supreme Court including Public Prosecutor v. Ali August of Criminal Case No. 14 of 2000 where the Chief Justice set out the applicable rules. To assist in the understanding of those rules we repeat what he said:

The offence of rape is always a most serious crime. Other than in wholly exceptional circumstance, rape calls for an immediate custodial sentence. This was certainly so in the present case. A custodial sentence is necessary for a variety of reasons. First of all to mark the gravity of the offence. Secondly to emphasize public disapproval. Thirdly to serve as a warning to others. Fourthly to punish the offender, and last but by no means least, to protect women. The length of the sentence will depend on the circumstances. That is a trite observation, but these in cases of rape vary widely from case to case."

And further:-

"In that case we said it will only be in the most exceptional of cases that suspension could ever be contemplated in a case of sexual abuse. There is nothing in this case which brings it into that category. 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 but men who take advantage sexually of women forfeit the right to remain in the community."

16.	The starting point for a contested rape case, where there has been an abduction, as is the case here, should accordingly be of 8 years imprisonment. However, besides the abduction, there is also the wide disparity of age and, in particular, that the victim was only 12 years of age. In my view, that warrants the starting point to be lifted to an offending end point of 10 years imprisonment. 

17.	I then need to turn to see whether there are any matters of mitigation that can be claimed by you. You have expressed remorse and you have said you felt sorry for the victim but I have to say that I consider that to be more an expression of remorse for what you had done to your family and for what lies in front of you. 

18.	There has, however, been a kastom reconciliation ceremony and that is addressed by the probation officer in the pre-sentence report. That reconciliation ceremony was essentially between your family and the victim's family and the following custom gifts were exchanged:

-	a pig valued at Vt 25,000 along with Island food.
-	4 rolls of calico
-	Vt 5,000 cash
-	11 mats, valued at Vt 1,000 each
-	Food crop
-	A stem of kava 
-	1 sugarcane.

19.	It is noted that there was a Kastom report attached to the pre-sentence report but it is not attached. Be that as it may, I can understand that your family has made a substantial offer of peace, of klin fes, to the family of the victim. Furthermore, with the assistance of the chiefs involved, there clearly has been forgiveness achieved and expressed by the victim's family to your family for what you have done. 

20.	However, what I do not have is any statement as to the effect that this offending has had upon the young girl. Instead, I have significant material as to the effect that imprisonment is having on your family causing great hardship which would be so given that you were the bread winner of your family. You have 4 children and there are school fees and such like that would normally be paid by you. However, your children's education is now in peril because of your selfish adn damaging acts. 

21.	Your family has no-one to blame for their predicament but you. That young girl, the complainant, did nothing to deserve this. You came into her life for a very short time and you did your best to destroy it. For that, you need to be punished and punished severely. 

22.	The sentence must hold you fully accountable for what you have done. It must mark society's condemnation of your offending against a young and vulnerable member of this community and it must do its best to deter others from offending in a similar way. 

23.	I indicated that the offending end point here was one of 10 years imprisonment. I accept that there has been a kastom reconciliation ceremony between the families and that there has been some peace achieved through that process. You are entitled by law to recognition of that reconciliation. There is also, of course, some remorse expressed by you. Additionally, you have from the outset acknowledged that sexual intercourse occurred and so that set the trial on a particular path that meant that it dealt with just the issue of credibility in relation to consent issues. 

24.	For all those matters, the reconciliation, the faint statement of remorse and your early admission of sexual intercourse with this 12 year old girl, I am prepared to make an allowance of 2 years against the offending end point that I have mentioned. 

SENTENCE

25.	The sentence will be imposed in this way:

a)	Count 5, Sexual intercourse without consent (Rape): taking this as the lead charge - 8 years imprisonment;

b)	Count 1,- Kidnapping - 5 years imprisonment;

c)	Count 2, Indecent Act - 3 years imprisonment;

d)	Count 4 – Sexual intercourse without consent (digital penetration) – 5 years imprisonment

26.	All sentences are concurrent and shall be deemed to have commenced on 12 July 2011 when you were first taken in to custody. That approach will maximise your parole entitlements.

27.	You have 14 days to appeal this sentence if you do not accept it

BY THE COURT