Public Prosecutor v Kaltonga
SENTENCE
Introduction
1. Mr Kaltonga, today you appear for sentence in relation to a charge of sexual intercourse without consent (rape). [1] You were found guilty of the charge of rape following a trial.
2. The maximum penalty for rape is life imprisonment.
The facts
3. You and the victim, FN, are related. FN regards you are her brother, as the two of you grew up together. At the time of the rape, FN was living with your family at Siviri village, North Efate. On 28 September 2024, you and FN attended a bridal event in Port Vila with relatives. The festivities continued when the group returned to Siviri.
4. You and FN returned your family home the next morning between 4 and 5am. Normally, FN slept on a couch, as she did not have a bedroom. When you went into the house, FN went and sat on the couch.
5. You then suggested she sleep in your bedroom. FN said the two of you were close, so she did not think there was anything untoward about the suggestion. She went into your bedroom and initially, lay on some clothes on the bed, which did not have a mattress. You then told her she could lie on the mattress on the floor, which she did. You started to touch her leg up to her bottom and FN pushed you away, telling you that they were all related. FN was very tired, had been drinking and so went to sleep on the mattress. When she woke up at about 8am, she felt as though things were not normal. She was not wearing her trousers or underpants. She believed the two of you had sexual intercourse. She knew nothing about it. FN was correct, as you accepted at trial that there was sexual intercourse but said that FN was awake and it was consensual. I did not accept your evidence about that.
6. I found that the sexual intercourse was nonconsensual as FN was incapable of consenting because she was asleep.
Sentencing purposes/principles
7. 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
8. Sentencing involves 2 separate steps; Jimmy Philip v Public Prosecutor [2020] VUCA 40, which applied Moses v R [2020] NZCA 296.
Starting point
9. 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.
10. I consider that the aggravating factors of this offending are:
a. There was a breach of trust as you and the victim are related. She considered you to be a brother, although you are not biologically related. The two of you grew up together.
b. The rape occurred in your family home where FN was living at the time. She was entitled to feel safe there.
c. There was an element of premeditation or deliberateness on your part, as you were the one to invite FN into the bedroom and then suggested she lie on the mattress on the floor, rather than on the bedframe.
d. The victim was vulnerable because she was intoxicated and asleep when the rape occurred. She was unable to consent. You took advantage of that situation.
e. There was a risk of pregnancy and sexually transmitted diseases as the sexual intercourse was unprotected.
f. While harm is inherent in rape offending, having seen and heard FN give evidence, she has been psychologically affected by the rape. In particular, she has lost the close relationship she had once had with your family, particularly your mother. That relationship was very important to FN and has fractured.
11. There are no mitigating features of the offending itself.
12. Because the lead offending is rape, Public Prosecutor v August [2000] VUSC 73 and Public Prosecutor v Scott [2002] VUCA 29 apply. Scott is the guideline case for rape. According to Scott, where a rape is committed without any aggravating or mitigating factors, the starting point is 5 years imprisonment. As detailed in Scott, rape is aggravated by various factors. However, I do not think any of those factors are present here. That said, it does not follow that the starting point must be 5 years imprisonment. What is required is an assessment of culpability taking into account the relevant aggravating factors, and their significance. The standout aggravating factor here is FN’s vulnerability because she was intoxicated, went to sleep, so was incapable of consenting. Further, the breach of trust and the fact the rape was committed in a place FN was entitled to feel safe are moderately serious aggravating factors.
13. The prosecutor contends that the appropriate starting point for the offending is not less than 7 years imprisonment. Mrs Nari contends that the starting point should be 5 years imprisonment. Both counsel referred to the guideline case for rape, Public Prosecutor v Scott and other cases to assist with setting the appropriate starting point. As the Court of Appeal said recently in Meltek v Public Prosecutor [2025] VUCA 41, sentencing is not an exact science because the circumstances will vary, so comparisons with other cases are at best an imprecise guide. Two cases cited by counsel highlight this point, as I will explain.
14. In Public Prosecutor v Tapore [2025] VUSC 257, the defendant was sentenced for a charge of rape. The victim and defendant were related. They were cousins. The victim got drunk. The defendant took advantage of her intoxication by taking her into the bushes, where she passed out. Her trousers were removed, and the defendant had sexual intercourse with her. The victim knew nothing about it. After considering the relevant aggravating factors, a starting point of 5 ½ years imprisonment was adopted. In Public Prosecutor v Billy [2021] VUSC 38, the intoxicated victim was accompanying friends and relatives to a beach. She fell asleep and was found by the defendant. He removed her clothes and had sexual intercourse with her. After considering the relevant aggravating factors, the starting point adopted was 7 years imprisonment. It is difficult to reconcile the different starting points for broadly similar offending in those two cases, and I do not find them of any real assistance for that reason.
15. However, two Court of Appeal cases provide some assistance, being Siply v Public Prosecutor [2016] VUCA 22 and Tatar v Public Prosecutor [2026] VUCA 19.
16. In Siply, the appellant was found guilty at a trial of charges of rape and act of indecency. The victim had been in a relationship with the appellant. The victim had ended it, because the appellant wanted to have sexual intercourse her, but she was unwilling to do so until after marriage. Two days later the victim was at home and became intoxicated due to the distress she suffered as a result of the breakup. The appellant visited the victim who then passed out. She woke up to the appellant having sexual intercourse with her. The appellant withdrew his penis and ejaculated onto her stomach. The victim blacked out again and when she awoke the appellant was having sex with her again. The Court of Appeal said the 8 year starting point adopted by the primary Judge was near the top of the range properly imposed for that kind of offending but was within range.
17. In Tatar, the victim and appellant attended a birthday celebration for the victim. The celebration took place at a coconut plantation some distance from their village. They were both young people. The victim was 16 years and the appellant was 15 years old at the time of the rape. As they were returning to their village, the victim, who was intoxicated, fell to the ground. The appellant was asked to assist. Instead of assisting the victim, he had sexual intercourse with the victim without her consent. As a result, the victim became pregnant. She became aware of the pregnancy about a month after the sexual intercourse took place. Because the Court found there were errors in the sentence, the Court of Appeal re-sentenced the appellant. The starting point adopted to reflect culpability was 6 years imprisonment. The standout aggravating factor was the pregnancy that resulted. But as the Court said, it was not a rape committed by a mature adult in a premeditated way.
18. Because the starting points adopted in Tapore and Billy are difficult to reconcile, I put those cases to one side. I have derived assistance though from both Siply and Tatar. The offending here is not as serious as Siply which involved two rapes. But I take into account the Court of Appeal’s observation that the starting point was near the top of the range for that type of offending. It is slightly more serious than the offending in Tatar, because it took place in the home where the victim was living and so she was entitled to feel safe there. Further, the present offending involved a breach of trust, which was not an aggravating factor in Tatar. Unlike Tatar, the rape in the present case had an element of deliberateness or premeditation as it was you who invited the victim into your bedroom and onto the mattress on the floor. You took advantage of her intoxication and the fact that she went to sleep.
19. In setting the appropriate starting point, I note that none of the Scott aggravating factors are present here. Nevertheless, there are a number of aggravating factors present which mean that a starting point higher than 5 years imprisonment is required. Taking the aggravating factors I have identified into account, together with Siply and Tatar, by way of cross check, I adopt a starting point of 6 ½ years imprisonment.
Personal factors
20. You were found guilty of the charge at trial. Therefore, the sentence cannot be reduced for a guilty plea.
21. Your personal circumstances are set out in the presentence report. You are from Siviri village, North Efate. You are aged 27 years and have a partner and a young child. Your family, particularly your mother, relies on you for support. You are well regarded in your community and have the support of your family. You have previous convictions, unrelated to the current offending.
22. You now accept responsibility for the offending. The presentence report notes that you are remorseful and willing to undertake a custom reconciliation. The victim is not yet ready for that. Your acceptance of responsibility is an important mitigating factor, as it shows the victim that you know what you did was wrong. It shows insight. It is unfortunate that such acceptance did not come earlier. I consider that the sentence should be reduced to reflect your acceptance of wrongdoing, remorse which I assess to be genuine, and willingness to put things right with the victim by way of custom reconciliation. That is a tangible sign of remorse. For these factors, I reduce the sentence by 8 months (10%).
23. In 2023 and 2024, you were sentenced in the Magistrate’s Court for various offences. In 2023, you were sentenced to 70 hours community work for charges of domestic violence and threatening language. In 2024, you received a suspended sentence and a fine for charges of intentional assault. As the Court of Appeal has said, a sentence should not be increased merely because of a previous conviction. Rather, what is required is a considered assessment of whether a sentence increase is needed for deterrence and public protection. [2]
24. I do not increase the sentence for your previous convictions. First, you were sentenced to noncustodial sentences. Secondly, the previous offences are unrelated to the present offending so there is no need to increase the sentence for deterrence and public protection. In the circumstances, an uplift is not warranted.
25. You have been remanded in custody since 7 March 2025. That needs to be taken into account. I intend to do so by backdating the sentence start date. I will come to that shortly.
End sentence
26. The end sentence for the charge of rape is 5 years 10 months imprisonment.
27. I am asked to partially suspend the sentence by your counsel. Under s 57 of the Penal Code, there is a discretion to suspend an imprisonment sentence in whole or in part. I must take into account the circumstances, the nature of the offending and your character. In Public Prosecutor v Gideon [2002] VUCA 7, the Court of Appeal said that it will only be in the most extreme of cases that suspension could ever be contemplated in a case of sexual abuse. That was reaffirmed by the Court of Appeal in Tulili v Public Prosecutor [2024] VUCA 54.
28. As the Court of Appeal has said, in assessing whether or not to exercise the suspension discretion, a balancing of factors against, and factors for, suspension is required. [3] This is serious offending, given the aggravating factors set out above. You took advantage of the victim for your own sexual gratification. The offending involved a breach of trust, and the victim was vulnerable because she was intoxicated and went to sleep. FN was entitled to feel safe in her own home. I accept you are well regarded in your community, are remorseful and now accept responsibility. I acknowledge your family relies upon you. While your previous convictions do not require the sentence to be increased, your poor compliance with previous sentences is relevant to the suspension discretion. The presentence report records that you did not complete a previous sentence of community work and were non-compliant with instructions given by a probation officer. That counts against suspension.
29. The circumstances, both in relation to the offending and you personally, are a long way from being exceptional or extreme so as to warrant suspension of the sentence in whole or in part. Accountability, deterrence and denunciation are important sentencing purposes, given the overall nature of the offending. A stern response is needed. The sentence will not be suspended, in whole or in part.
30. There is one further point. Because the end sentence is 5 years 10 months imprisonment, the sentence could not be suspended in part. Pursuant to s 58(2) of the Penal Code, the discretion to partially suspend a sentence is only available if the sentence is 3 years or less.
31. The sentence is to commence immediately. You have been remanded in custody since 7 March 2025. Accordingly, the sentence start date is backdated to commence on 7 March 2025.
32. You have 14 days to appeal against the sentence.
33. I make a permanent order suppressing the names and identifying details of the victim.
DATED at Port Vila this 4th day of June 2026
BY THE COURT
………………………………………….
Justice M A MacKenzie
[1] contrary to ss 89A, 90(a) and 91 of the Penal Code [CAP 135].
[2] See the discussion in Meltek v Public Prosecutor [2025] VUCA 41 at paragraphs 31-34.
[3] Public Prosecutor v Garae [2025] VUCA 37.