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Public Prosecutor v Pakoa [2004] VUSC 48; Criminal Case 053 of 2003 (6 September 2004)

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

Criminal Case No. 53 of 2003

PUBLIC PROSECUTOR

-v-

SILAS PAKOA

Coram: Chief Justice Lunabek

Mr. Eric Csiba for the Prosecution
Mr. Peter Bartel for Defendant

Date of hearing: 1 September 2004
Date of sentence: 6 September 2004
Date of finalisation of Mechanic Training Scheme as condition for suspension of sentence of Defendant for rehabilitation purposes: 16 September 2004

SENTENCE

This is the sentence of the Defendant, Silas Pakoa. Silas Pakoa was a young offender of 17 years of age. He was a student at Sorovanga Rural Training Centre at Blacksands, Efate. He was charged and pleaded guilty to the following offences:-

▪ 4 counts of Indecent Assault, contrary to Section 98(1) of the Penal Code Act [CAP. 135]. This offence carries a maximum penalty of 10 years imprisonment.

▪ 4 counts of Attempted Unlawful Sexual Intercourse, contrary to Section 28 and 97(1) of the Penal Code Act [CAP. 135]. This offence carries a maximum penalty of 14 years imprisonment.

▪ 10 counts of Unlawful Sexual Intercourse, contrary to Section 97(1) of the Penal Code Act [CAP. 135]. This offence carries a maximum penalty of 14 years imprisonment.

The offences occurred from 28 July 2003 to October 2003. This constitutes a three (3) months period of sexual abuse of five (5) very young girls of tender age ranging from 9 to 11 years.

The prosecution says the offences are very serious offences committed by a young offender of 16 years of age at the time of offending.

The prosecution relies on the Court Appeal Judgment in PP v. Keven Gideon, [2002] VUCA 7; Criminal Appeal Case No. 3 of 2001. That case was applied by the Supreme Court in the case of PP v. Andre Ken, Kaltu Ken and Reuben Andre, [2003] VUSC 52; Criminal Case No. 33 of 2003.

The following constitute aggravating features:

(a) The age and the numbers of the witnesses.

There were five (5) young children (girls) aged between 9 and 11 years.

(b) The offence was repeated from indecent acts to intercourse.

The Defendant started his criminal conduct leading up to the offences charged against him by exposing his penis, then progressing to touching the young girls private parts, moving forward to Attempted Unlawful Sexual Intercourse to finally Unlawful Sexual Intercourse.

There are 18 counts charged upon which he pleaded guilty to each and all of them occurring between 29 July 2003 to October 2003. That is in a period of 3 months.

(c) Use of threats.

The Defendant was threatening to kill the young girls if they told anyone of his behaviour.

The Defendant Silas Pakoa, was born on 17 November 1986. He was a student at Sorovanga School at Blacksands, Efate at the time of offending.

He was then terminated from the School by the School Disciplinary Committee as from 28 October 2003 as a result of those offences. He was not allowed to return to school. His schooling has been ended as a result of those offences.

The Defendant is contrite and remorseful for these offences. It is said that in one sense his criminality in these matters can be seen as a “result of youthful male sexual experimentation”.

The Defendant has submitted voluntarily to counselling. A letter dated 31st May 2004 is produced to the Court from the Vanuatu Women’s Centre detailing the Defendant’s visits for counselling at the Centre.

The Defendant has performed custom ceremonies on 26 and 30 October 2003 and letters detailing those ceremonies are tendered to the Court. The Court is asked to consider these letters for the purpose of Section 119 of the Criminal Procedure Code Act [CAP. 136]. This will be taken into account in his favour.

The Defendant was cooperative with the police and entered pleas of guilty to spare young victims of the ordeal of giving evidence before the Court. This will also be taken into account in his sentencing.

The Defendant is a first time offender. He has no previous convictions. The defence says that the facts and circumstances surrounding this case are distinguishable from those matters contained in Public Prosecutor v. Keven Gideon, [2002] VUCA 7; Criminal Appeal Case No. 3 of 2001. They are set out as follows:-

▪ The Defendant committed the offences aged 16 whilst Gideon was aged 25.

▪ There is no breach of trust between Defendant and Victims as in Gideon.

▪ Gideon’s criminality was directed upon one young isolated Victim whilst in this case there was no isolation of the Victim.

▪ This Defendant unlike Gideon did not Prey on the victim within her home.

▪ There is no evidence unlike Gideon that the Victim’s suffered physical damage.

The defence says further that the facts in the case of PP v. Andre Ken, Kaltu Ken and Reuben Andre, are not similar to the present and is not an appropriate authority for the sentences purposes.

It is true that the facts and surrounding circumstances in the case of PP v. Keven Gideon and PP v. Andre Ken & Others are not similar to the present case, and as such they must be distinguishable from the present case.

However, the following statement made by the Court of Appeal in PP -v- Gideon remains the principle authority in sexual offences:

“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. Men who take advantage sexually of young people forfeit the right to remain in the community.”

This statement is not only true for the men but also for the offences perpetrated by “young adolescent male offenders”.

Each case will be assessed in the light of the guideline judgment and on basis of its factual circumstances.

In this case, the facts and surrounding circumstances require that a custodial sentence is appropriate. The starting point for the sentence is 5 years. This sentence is to be increased to 8 years imprisonment which is the appropriate sentence to reflect the aggravating features.

The sentence of 8 years is to be considered in the light of the mitigating factors. This sentence of 8 years is to be reduced by ⅓ to reflect the guilty plea.

The balance is then further reduced by ⅓ to reflect the custom ceremony done by the Defendant under custom in accordance with Section 119 of the Criminal Procedure Code [CAP. 136].

The outstanding balance is a sentence of 10 months and 6 weeks.

The defence says a suspended custodial sentence will meet the situation of this Defendant as he is exploring a scheme for him to undergo the mechanic training through the assistance and supervision of the Principal of the Sorovanga School at Blacksands, Efate, for a period of 2 years.

I explore and consider whether I can suspend the sentence of this young offender. The circumstances of this case show that the Defendant is a pubescent adolescent offender as he was at age 16. There is no evidence before the Court of physical injury occasioned to the young girls victims. Because of his young age, there is real need to rehabilitate this Defendant.

As in other cases dealing with young offenders, after enquiring from counsel, it appears that in Vanuatu, there is no institutional nor state infrastructure nor facilities for youth offenders rehabilitation programme or centre.

I consider and appreciate the circumstance of this case, the Defendant and his age. I bear in mind that it is a very risky exercise for the Court to send this young boy of 17 years of age in custody with more adult and dangerous prisoners. He needs to be rehabilitated.

I then peruse the Section 1(a), (b), (c) and (d) which is the relevant provision of the Suspension of the Sentence Act [CAP. 67] which reads:

“PROVISION FOR SUSPENSION OF SENTENCES

1. The execution of any sentence imposed for an offence against any Act, regulation, rule or order may, by decision of the court having jurisdiction in the matter, be suspended subject to the following conditions-

(a) when the court which has convicted a person of an offence considers that, in view of the circumstances and in particular the nature of the crime and the character of the offender, it is not appropriate to make him suffer a penalty it may in its discretion order the suspension of the execution of any sentence it has imposed upon him, on the condition that the person sentenced commits no further offence against any Act, regulation, rule or order, the original sentence shall be immediately executed, in no case concurrently with any subsequent sentence;

(b) if, at the end of such period, the person the execution of whose sentence has been suspended in accordance with this section shall not have been convicted of any further offence against any Act, regulation, rule or order, the original sentence shall be immediately executed, in no case concurrently with any subsequent sentence;

(c) if, before the end of such period, the person the execution of whose sentence has been suspended in accordance with this section shall not have been convicted of any further offence against any Act, regulation, rule or order, the sentence shall be deemed to be annulled;

(d) the court shall, when ordering the suspension of the execution of the sentence, explain clearly to the person sentenced the nature of the order and shall ascertain that he understood its meaning.”

[Emphasis added].

I exercise my judicial discretion as the sentencing Judge to suspend the sentence for the maximum period of 3 years in accordance with the suspension of the Sentence Act [CAP. 67] to reflect the seriousness and gravity of the offences committed by this young Defendant.

For a period of 2 years within the maximum period of 3 years suspended sentence the Defendant, Silas Pakoa, is Ordered and Directed to go through a mechanic training with the assistance and under the supervision of the Principal of Sorovanga School at Blacksands, Efate.

Mr. David Abel is the Principal of Sorovanga School. He was in Court and informed the Court and the Counsel that he accepts and agrees to assist and to supervise the training of the Defendant, Silas Pakoa.

He informed the Court via counsel (Defence) that a mechanic is connected with the School. The mechanic provides additional mechanic training to the students of Sorovanga School at Blacksands, Efate.

The training cannot be made at Sorovanga School as three (3) of the young girl victims are still attending that School. It is to be independently organized and undergone in a different location where the Defendant can attend and do his training for a period of 2 years under the supervision of the Principal of Sorovanga School. The detailed arrangements are yet to be finalized.

Once they are finalized, they will be attached to this sentencing ORDER as part of the condition of the suspension of the sentence imposed upon this Defendant. The Defendant must comply with them for the purpose of his rehabilitation for a period of 2 years.

At the end of the 2 years Mechanic Training Scheme, if the Defendant has successfully completed his training, the Principal of Sorovanga School shall provide to the Supreme Court a short report in writing to this effect.

If the Defendant fails to attend his mechanic training without good reason, or reasonable excuse, he may be brought before the Court for breaching the condition of his suspended sentence.

If the Court is so satisfied, the Defendant will be dealt with for contempt of the Court Order and the original sentence of 10 months and 6 weeks shall be immediately executed, in no case concurrently with any subsequent sentence.

The Defendant is informed and advised that apart from his mechanic training for 2 years period from the date of the sentence, his original sentence of 10 months and 6 weeks is suspended for 3 years. This means that after the completion of his 2 years mechanic training, he must ensure that he does not re-offend against any Act, regulation, rule or order until the balance of 3 years period suspension is over.

Dated AT PORT VILA this 6th day of September 2004

BY THE COURT

Vincent LUNABEK
Chief Justice