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Public Prosecutor v Isaiah [2004] VUSC 73; Criminal Case 009 of 2004 (6 May 2004)

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

Criminal Case No. 09 of 2004

PUBLIC PROSECUTOR

–v-

HUNGAI ISAIAH

Coram: Justice Treston

Mrs. Tavoa for Public Prosecutor
Mr. Tavoa for Defendant

Date of Sentence: 06 May 2004

SENTENCE

You appear for sentence this morning on three counts of unlawful sexual intercourse. The maximum potential sentence for each of those offences is 5 years imprisonment. Although there are three counts, count 1 and 2 are representative counts. Count 1 involves 4 incidents of unlawful sexual intercourse in 2002, Count 2 refers to 7 incidents of unlawful sexual intercourse in 2003 and Count 4 involves 1 occasion during 2004.

According to the statement of facts, you are 21 years of age and have consistently had sex with the victim who is your niece. The sexual activity largely took place the kitchen of her parents' home when they were working in the gardens. As result of your relationship with the victim, she has become pregnant and is to give birth shortly. You denied using force to have sex with the victim but of course you were in a position of responsibility as her uncle and in any event it is no defence to these charges that she consented.

The Prosecution submitted to me that there are aggravating features that I should take into account. It is submitted that the victim became an object for your sexual pleasure and you have habitually made contact with her and shamed and scared her and that she has become pregnant as a result of your actions at a very young age, her not knowing or appreciating fully the role and responsibility of parenthood. The Court is asked to impose a sentence, which will deter you and other like-minded offenders from this activity.

On your behalf, I am given your background and confirmation that you are 21 years of age and have worked as a gardener producing copra. You have siblings who are married and raising their own families. You look after your aging parents. You have had limited educational opportunities and you are willing to perform a customary reconciliation ceremony although the victim's parents have refused this option. It is said that you have pleaded guilty at the first available opportunity, which relieves the victim from the trauma and distress of having to give evidence in Court in front of strangers. I am asked to treat you as not being a threat to society and you have promised that this will be your first and last offending. You are a committed churchgoer and attend church regularly.

I am given the assistance of various previous sentencing cases both by the Prosecution and the defence which I have considered carefully. Some of those cases are relevant, others involves more serious offending such as rape.

In sentencing I am of course required to take into account not only the harm to the victim but also to the community at large. I must denounce your conduct as being a breach of the law and I agree with the prosecution that I must impose a sentence which is deterrent not only to you and but to others. I must of course protect the community and other young female from this sort of activity. There has been an effect on the victim, which I must take into account and I will refer to that shortly. I must impose a sentence, which has the least restrictive outcome for you in fairness both to you and the victim.

There are of course aggravating features, some of which are referred to by the Prosecutor. I must take into account the nature of the charges and the age of the complainant. She was of course quite young at the time of the offences and is still young to be bearing a child. There are elements of breach of trust in this matter because you were her uncle. You are clearly some years older and more mature than she is. There are as I said the consequences to the victim of her becoming pregnant. Another aggravating feature is that you face twelve charges of unlawful sexual intercourse so the offending is repetitive. You took advantage as her vulnerability of a young girl in this offending.

Mitigating factors include some which have been already placed before me by your lawyer. They include your plea of guilty, your expression of remorse through your lawyer, and the fact that you have been prepared to undergo a customary settlement under Section 119 of the Criminal Procedure Code. There is of course your previous good character because I do not have any advice of any convictions against you already entered.

I take into account the various sentencing options that your lawyer has placed before me for consideration. When I impose sentence of course I take into account Section 119 of the Code and the fact that you have already been in custody for some three months.

When the Court of Appeal dealt with similar counts in the case of Public Prosecutor v Gideon that is under [2002] VUCA 7; CAC03 of 2001 the Court said this where in that case there was a 12 year old child:

"Children must be protected, any suggestion that a 12 year old has encouraged or initiated sexual intimacy is rejected. If a 12 year old is acting foolishly then they need protection from adults. It is totally wrong for adults to take advantage of their immaturity. It will only be in a most extreme of cases that suspension could ever be contemplated in a case of sexual abuse. 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".

Because there are so many incidents of this crime twelve in all, the Court would be justified in adding one sentence to another but I take into account these factors when I impose a global sentence upon you. You at 21 years of age. Your pleas were guilty. You expressed your willingness to undergo a customary settlement and you are a first offender. I agree, however, that there must be elements of deterrence particularly directed at you.

The appropriate starting point in my view looking at the matter globally and the number of offences is in the vicinity of five to six years, giving such credit as I can, I sentence you on all of these matters to three and a half year imprisonment. All those sentences be served at the same time so you will serve three and a half years imprisonment less three month for your being in custody so the sentence you will serve is three years three months. You have the right to appeal against the sentence, should you wish, within 14 days.

Dated AT PORT VILA, this 06th day of May 2004.

BY THE COURT

P. I. TRESTON
Judge