Public Prosecutor v Melikum
SENTENCE
A. Introduction
1. Mr James Melikum, you appear for sentence today having been found guilty after trial of sexual intercourse without consent contrary to ss 90 and 91 of the Penal Code [CAP. 135].
2. The maximum sentence prescribed in the Penal Code for this offence is life imprisonment.
B. Facts
3. It was undisputed that you and the 18-year-old complainant HB (name suppressed) had sexual intercourse on 16 August 2025 at Mathew Grose’s residence at the Shell company area in Luganville.
4. HB calls you, “daddy.” She also calls Mr Grose and his brother, “daddy” (“tata” in their language). You are 48 years old. You work as a mechanic at Mr Grose’s garage. Both you and HB were residing with Mr Grose at the time of the offending.
5. HB was asleep in a bedroom upstairs when you entered the room. You did not ask her before touching her breasts and vagina and having sexual intercourse with her. When you touched HB’s breasts and vagina, she said, “No” to you. You continued to touch her and then had sexual intercourse with her. You did not ask HB whether or not she wanted to have sex with you. She did not consent to the sexual intercourse.
6. When you started touching HB’s breasts and vagina, she tried to struggle to get free and call out because she expected others in the house to come to her aid because she did not know that the others in the house had gone out. HB tried to struggle and free herself but she was weak – she was recovering from her illness and her operation. She said that she tried to free herself but you are much bigger than she is and she is too small. My own observation is that HB is small in stature and you are much taller and stronger than her.
7. You then put a thick blanket over her face and pressed your hand over the blanket onto her face so that she could not call out, then inserted his penis into her vagina, which caused her pain. You had sexual intercourse with her.
8. In the circumstances when you touched HB’s breasts and vagina, she said, “No” to you, that she tried to struggle to get free when you touched her breasts and vagina, and you covered her face with a blanket and pressed it into her face to stop her calling out before and during sexual intercourse with her, you could not have believed on reasonable grounds that HB was consenting at the time that the sexual intercourse occurred.
9. HB heard Mr Grose’s truck arrive outside which was when she realised that the others in the house had gone out. Then you left the room. HB stayed in the room and began to cry.
C. Sentence Start Point
10. The sentence start point is assessed having regard to the maximum sentence available, and the mitigating and aggravating factors of the offending.
11. There are no mitigating factors to this offending.
12. The aggravating factors of the offending include:
• Breach of trust;
• Premeditation and planning;
• The use of force to effect the rape;
• Unprotected sex which exposed the complainant to the risk of pregnancy and sexually transmitted infection; and
• The effects on the complainant including the pain and harm suffered.
13. The factors set out above require a sentence start point of 6 years imprisonment.
D. Personal Factors
14. You are 48 years old. You are married and have 3 children. The last of your children is in secondary school. Your wife is overseas, on seasonal work. You are separated from your wife. You completed Year 10 and then mechanic training at the INTV in Port Vila. You started your mechanic business in 2006. Mr Grose relies on you for his mechanic/garage business in Luganville, Santo. You have no prior convictions though that is of limited assistance to mitigate a sentence in the case of sexual offending. You are willing to pay custom compensation to the victim but after the case has finished. Ten percent (7 months) is deducted from the sentence start point for your personal factors.
15. You served time in custody from 3 September 2025 to 27 February 2026 (6 and a half months), an effective imprisonment term of 13 months therefore a further 13 months is deducted from the sentence start point.
E. End Sentence
16. Taking the foregoing matters into account, the following end sentence is imposed:
i) Sexual intercourse without consent – 4 years 4 months imprisonment.
17. In certain circumstances the Court can suspend all or part of the sentence. However, that is not possible due to the seriousness of the offending and the type of criminal conduct involved: Public Prosecutor v Gideon [2002] VUCA 7. There are no exceptional circumstances warranting suspension of sentence. The sentencing principles of specific and general deterrence, holding the offender accountable for his actions and protecting the community require to be met with a condign sentence.
18. Given that you have previously served time in custody, s. 50 of the Penal Code does not apply to you therefore you are to present yourself to the Correctional Centre in Luganville today to begin serving your sentences. The Manager of the Correctional Centre is to inform the Court tomorrow if you fail to present yourself to the Correctional Centre today.
19. You have 14 days to appeal the sentence.
20. All details leading to the identification of the complainant HB are permanently suppressed.
DATED at Port Vila this 25th day of May, 2026
BY THE COURT
………………………………………….
Justice Viran Molisa Trief