Public Prosecutor v Maliwan

SENTENCE

Introduction

1.    Mr Keegan Maliwan, you appear for sentence having been found guilty at trial of a charge of unlawful sexual intercourse contrary to s 97(1) of the Penal Code [CAP135]. The maximum penalty for this offence is life imprisonment. 

2.    There was initially another charge of unlawful sexual intercourse, but the prosecutor entered a nolle prosequi for that charge at the end of the prosecution case.

The Facts

3.    The victim, MM, is aged 6 years. At the time of the sexual assault, MM was aged 5 years. You are her father. In 2025, the family was living in Tanna. One evening in April 2025, when MM’s mother was out, you sexually assaulted MM by putting your finger into her “pu”. That is what MM calls her vagina. The next day, MM told her mother that her pu was painful. MM’s mother sought medical treatment for her daughter. 

4.    MM was examined by a doctor on 28 April 2025. The medical examination showed that there was inflammation around MM’s vagina, it was red in colour and tender to touch. The doctor said that MM’s hymen had been stretched. The hymen is a thin skin that seals the entry into the vagina. So, anything that penetrates the hymen, usually stretched or tears it. If the hymen is stretched, it indicates there was penetration of the vagina. Following the medical examination, the Child Desk Office in Tanna became involved, and a complaint to police was made. 

Sentencing purposes/principles

5.    The sentence I impose must hold you accountable and must denounce and deter your conduct. The sentence should ensure you take responsibility for your actions, and help you to rehabilitate. It must also be generally consistent. 

Approach to sentence 

6.    Sentencing involves 2 separate steps; Jimmy Philip v Public Prosecutor [2020] VUCA 40, which applied Moses v R [2020] NZCA 296. 

Starting point

7.    The first step is to set a starting point to reflect the aggravating and mitigating features of the offending, and with reference to the maximum penalty for the offence. 

8.    The aggravating factors are:

a.    The offending involves a gross breach of trust. You are MM’s father. You should have protected her, not used her for your sexual gratification.

b.    The incident took place at your home in Tanna. MM was entitled to feel safe in her own home.

c.    MM was vulnerable because of her age and the age disparity between the two of you. At the time, MM was aged 5 years, and you were aged 42 years. 

d.    There was a degree of premeditation and planning as you took the opportunity to sexually assault MM while her mother was out with the other children.

e.    While not as intrusive as penile penetration, the digital penetration caused physical harm to MM, given the findings of the medical examination, as detailed above.

f.    The emotional and psychological harm to the victim. While there is no specific information about the impact, it is well recognised that harm can be longstanding and may not manifest itself until many years down the track. 

9.    There are no mitigating features of the offending itself.

10.    Both the prosecutor and Mr Tevi submit that that the appropriate starting point for the unlawful sexual intercourse is 6 years imprisonment. 

11.    Both counsel recognise in their written submissions that the offending in the present case does not involve penile penetration. Therefore, Public Prosecutor v Andy [2011] VUCA 14, and Nampo v Public Prosecutor [2018] VUCA 43 are applicable. Both cases discuss the distinction between penile and other forms of sexual intercourse, which should be recognised for sentencing purposes. As explained in Nampo, it has been clear law in Vanuatu that penile intercourse as opposed to other forms of penetration of the vagina is “more serious” and “more physically intrusive”

12.    Andy involved unlawful sexual intercourse. The victim was aged 10 years and the defendant aged 30 years. The offending involved a one-off incident of licking of the victim’s vagina and then digital penetration. There was a breach of trust, and the victim was injured. The Court of Appeal said that a starting point of 6-7 years imprisonment was warranted. Another useful case is Public Prosecutor v Freddy [2019] VUSC 19, because it involved the same charge as the present case and there are some factual similarities. In Freddy, the defendant went into the victim’s bedroom while she was asleep. He removed her clothes and inserted a finger into her vagina. The digital penetration caused an injury. The victim was under the age of 5 years at the time and had been living in the same house as the defendant but was not closely related. The starting point adopted in Freddy was 6 years imprisonment. I consider the present circumstances to be as serious as both Andy and Freddy. That is because of the gross breach of trust, MM’s vulnerability and that she was injured from the digital penetration. Those are significantly aggravating factors.

13.    Taking into account both Andy and Freddy, and the aggravating factors here, particularly the gross breach of trust, MM’s vulnerability because of her age, and that she sustained an injury, I adopt a starting point of 6 years imprisonment. 

Personal factors

14.    You did not plead guilty. You were found guilty at trial. There is therefore no reduction available for a guilty plea. 

15.    You are now aged 44 years and are a first offender. You were 42 at the time of the offending. You are a pastor and are well regarded in your community. Your wife however told the presentence report writer that you are violent and aggressive at home. This was confirmed by another pastor.

16.    You continue to deny the sexual assault. You are entitled to hold that view, but it means there can be no sentence reduction for remorse or your stated willingness to undertake a custom reconciliation to your wife and daughter. A custom reconciliation would be meaningless because you deny the offending. 

17.    The only factor capable of mitigating the sentence is your good character because you are a first offender. For that factor, the sentence is reduced by 6 months (approximately 8 %). 

18.    You have been remanded in custody since 30 April 2025. That is approximately 16 months, which equates to a sentence of 2 years 8 months imprisonment. Presentence detention must be taken into account. I will do so in imposing the end sentence. 

End Sentence 

19.    The end sentence is 5 years 6 months imprisonment. 

20.    There is a discretion to suspend the sentence, in whole or in part, pursuant to s 57 of the Penal Code, taking into account the circumstances, the nature of the crime, and your character. Your counsel appears to accept that there are no exceptional circumstances here warranting suspension of the sentence.

21.    As the Court of Appeal said in Public Prosecutor v Gideon [2002] VUCA 7, it will only be in an extreme or exceptional case that suspension could ever be contemplated in a case of sexual abuse. The approach to suspension of sentences for serious sexual offending has been reaffirmed in Public Prosecutor v Tulili [2024] VUCA 54. While I note that you are a first offender, and a pastor well regarded in the community, this is serious offending. You took advantage sexually of your daughter, who was vulnerable because of her age and the age disparity. MM was injured as a result of the digital penetration. You used her for your sexual gratification. This must be strongly condemned There is nothing exceptional about the circumstances, or you character so as to justify suspension of the sentence, and I decline to do so, either wholly or in part. The fact you are a first offender, and a pastor, cannot give way to the need to impose a sentence which acknowledges the seriousness of the offending, and meets the need for accountability, deterrence and denunciation. 

22.    I impose an immediate sentence of imprisonment of 5 years 6 months. You have been in custody since 30 April 2025. Therefore, the sentence is to be backdated to commence from that date.

23.    You have 14 days to appeal against the sentence.

24.    I make a permanent order suppressing the name and identifying details of the victim. 

DATED at Port Vila this 25th day of August 2026
BY THE COURT

………………………………………….
Justice M A MacKenzie