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Public Prosecutor v Tokoro [2007] VUSC 16; Criminal Case 05 of 2004 (13 April 2007)

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

CRIMINAL CASE No. 05 of 2004

PUBLIC PROSECUTOR

-v-

NITAIN TOKORO
EMEL TOKORO

Mr Lent Tevi for the prosecution
Mr Peter Bartels and Henzler Vira for the Defendants

Translator from Bislamar to Naka language of North Tanna: Peter Malalang

SENTENCE

This is the sentence of the Defendants Nitain Tokoro and Emel Tokoro. Nitain Tokoro is charged with the offence of Unlawful Sexual Intercourse, contrary to Section 97(2) of the Penal Code Act [CAP.135] and the Defendant Emel Tokoro is charged with the offence of Complicity to Unlawful Sexual Intercourse, contrary to Sections 30 and 97(2) of the Penal Code Act [CAP.135].

Each Defendant pleaded guilty to the offence each Defendant is charged with.

The Defendants are husband and wife. They are married and have three (3) young children. The girl complainant is the sister of the Defendant Emel and she is the sister in law of the Defendant Nitain Tokoro. The girl complainant is a girl of 14 years of age at the time of offending in February 2003 and she was attending a primary school.

In or about February 2003, at Lounasunan village at Green Hill area, Tanna, the victim’s father sent her to go to her sister Emel Nitain Tokoro, the second Defendant. Emel and Nitain live at Lepuku village at Green Hill area, Tanna. She sent to her sister to get some prawns and brought them back to her father. The girl followed her father’s instructions and sent to Lepuku village. She went to the Defendants’ home at Lepuku village and she met her sister Emel.

Emel Tokoro told the girl to follow her and her husband Nitain Tokoro to get some bananas in their gardens. They went to the garden. Once at the garden, the first Defendant held on the victim girl and put her on the ground and had sexual intercourse with her. At the time of the sexual intercourse, the Second Defendant, Emel Tokoro was about on (1) meter away from them. During the intercourse the girl felt so much pain, but Defendant Nitain Tokoro refused to get out of her until he ejaculated into her vagina.

After the intercourse, the Defendants told the girl not to tell anyone about what had happened to her. They returned back to Lepuku village and the girl went back to her father’s village.

Three (3) days after, Emel Tokoro invited her sister to help her cooked a dog. The girl went to her sister’s invitation. She met both Defendants at Lepuku village. Then, the Defendants and the girl went to the garden with a dog to bake the dog with taro. After baking, the Second Defendant asked the victim to follow her to search for prawns. At that time the Defendant had already left.

On their way to search for prawn, the Second Defendant told her again that she and her go to see a bird (Nawimba) and the victim will climb the tree to check it out. At that time, the First Defendant, Nitain Tokoro went up to the victim girl and had sexual intercourse with her again while the Second Defendant was standing a meter away. After the intercourse, the Defendants told the girl not to tell anyone of the offending.

The following are the aggravating factors:-

• Breach of trust of the domestic relationship which existed between the victim and the Defendants.
• The offending occurs on two occasions.
• The victim girl was told not to tell anybody about what the Defendants did to her.
• The difference of age of the First Defendant being 25 years at the time of the offence and the victim of 14 years old.

In mitigation, the defence submits that the First Defendant is of 25 years of age. The Second Defendant does not know her age. She must be of more than 20 years. Both Defendants are married to each other. They plead guilty. They admitted the offence to the police. They had both limited education. The offence occurred because of one very sad fact. When Nitain was in Port-Vila, wife was misbehaviour problem. Husband ashamed and embarrassed because of the problem. He was teased about that problem by the people who make fun of him.

As a part self-help mechanism in husband’s mind, he took this criminal action to balance his mind. This is the most unusual situation, not a situation where a man wants sexual ratification but where one man wants to restore his pride and esteem.

This is no excuse but goes to form picture of criminality taken. It gives reasons for his criminal action which he committed for the first time in his 25 years old.

Both Defendants know the seriousness of the case. They know their counsel wishes to minimize the criminal action and suffering caused to sister and sister in law of the Defendants.

Defendants are simple people living in North East Tanna. The Defendant male adopted a simple mechanism to restore his pride but it was a criminal activity.

Custom process has taken place.
Three custom ceremonies performed.

(1) Fine to victim
(2) Sign of cleaning face to the victim’s father
(3) Reconciliation to Council of Chiefs Nicoletan

- 3 pigs

- Kava

- Crops presented

This is a sign of sorry – contrition. This took place bearing in mind the offence occurring in 2003, four years ago. They continue to live in North East Tanna. The cleaning face has worked. They are in peace with the victim and the community. They had paid their sentence to the community and the victim. They and the victim are resuming peaceful relationship.

While prosecution differentiates between Nitain and Emel, I say they are both entitled to receive a sentence of imprisonment to be suspended with or without supervision or community work.

In this way, there would be a consistency following that course giving the close relationship between the Defendants and the victim given the motivation behind the commission of that offence.

I would urge and submit to the Court to find that a special circumstance arises in this case to spare a hardship to children of this couple if they were to be sent to Correctional Centre.

I have considered the circumstances of each offender, their character and personal history, and consider what the defence counsel say on behalf of each of the Defendants, I could not help but think that this case warrants an immediate term of imprisonment.

Men must learn that they cannot obtain sexual gratification at the expense of the weak and the vulnerable. Men who take advantage sexually of young people forfeit the right to remain in the community. [See PP v. Kevin Gideon, Criminal Appeal Case No.03 of 2001].

The present case shows that when the Court speaks of men it must mean and include women.

The appropriate sentence is one for 12 months imprisonment for both Defendants. I consider the respective circumstance of the offending, the personal history of each of the Defendants. I sentence both Defendants for a term of 12 months imprisonment and I suspend their imprisonment sentence for a period of 2 years.

The process and meaning of the suspension of the sentence of 12 months imprisonment for a period of 2 years is explained in great details by the Court to both Defendants.

14 days to appeal.

DATED at Isangel, Tanna this 13th day of April 2007

BY THE COURT

Vincent LUNABEK
Chief Justice