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Public Prosecutor v Capten [2007] VUSC 19; Criminal Case 02 of 2006 (13 April 2007)

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

CRIMINAL CASE No.02 of 2006

PUBLIC PROSECUTOR

-v-

HARRY CAPTEN

Mr Lent Tevi for the Public Prosecutor
Messrs Peter Bartels and Henzler Vira for the Defendant

SENTENCE

This is the sentence of the Defendant, Harry Capten. The Defendant is charged with the offence of Attempted Sexual Intercourse, contrary to Section 97(2) of the Penal Code Act [CAP.135]. On Monday 10 April 2007, the Defendant pleaded guilty to the offence as charged.

The Defendant is a taxi driver. The Defendant is related to the mother of the victim girl. The victim is 13 years old at the time of the offending. The girl knows the Defendant. She called him "Apu".

On 28 June 2006, at about 6.00PM o’clock, the Defendant drove the vehicle he was driving to a road market at Isini village. At the road market, he stopped and called the victim to see him. The victim then runs toward the vehicle where the Defendant was. The Defendant asked here to climb into the truck and follow him to pay some bread at Dorias Store. The victim girl, went and sat in the passenger seat in front of the truck and they drove off.

Along the way, the Defendant drove the truck pass the store, so the victim asked him where they are going. The Defendant told her they are going for the Defendant’s girl friend.

On their way, the Defendant drove the truck to another direction towards a Natapoa tree towards the sea near the road leading up to Unelco. The vehicle went on and stopped at the sand beaches.

At that place, the Defendant asked the girl to remove her clothes in the truck. She removed them and the Defendant tried to penetrate the girl’s vagina but he could not as the girl felt her body was very painful. Because of the pain, the girl and the Defendant wore their clothes back on and the Defendant drove the vehicle back to the road market and dropped off the victim girl.

The prosecution says that the following are the aggravating features.

• The age of the complainant (13 years old at the time of the offending).
• The breach of trust because of the relation of the girl had with the Defendant through her mother.
• The age of the Defendant – 30 years of age at the time of offending.

In mitigation, the defence says, they agree with the facts stated by the prosecution. At the time of the offending, the Defendant was 30 years and the victim 13. It is said the offence was committed because when the Defendant saw the victim he developed rubbish thoughts about the girl. The defence counsel submits that the age of the victim is not an aggravating factor as it is included in the offence itself. There was some relationship but it was obscure. The age difference of 30 years is an aggravating factor.

The Defendant is a first time offender. He pleads guilty. He said sorry to the victim through the performance of a custom ceremony with pigs, kava and food. The victim, her mother, her chief and family accept the custom ceremony as reconciliation process.

The Defendant pleaded guilty to the offence of Attempted Unlawful Sexual Intercourse, contrary to Sections 28 and 97(2) of the Penal Code Act [CAP.135].

Section 28(1), (2) & (4) provide:-

"28(1) An attempt to commit a criminal offence is committed if any act is done or omitted with intent to commit that crime and such act or omission is a step towards the commission of that crime which is immediately connected with it, or would have been had the facts been as the offender supposed them to be.
(2) An attempt shall be committed notwithstanding that complete commission of the offence was impossible by reason of a circumstance unknown to the offender.
(3) Acts committed in mere preparation of an offence shall not constitute an offence.
(4) The commission of an attempt offence shall constitute an offence punishable in the same manner as the offence concerned."

Section 97(2) provides:-

"97(2) No person shall have sexual intercourse with any child under the age of 15 years but of or over the age of 13 years.

Penalty: Imprisonment for 5 years."

This is a serious offence. The law recognizes the seriousness of the offence by imposing a maximum penalty of 5 years. I have considered the circumstances of the offending, the character and personal history of the Defendant and the submissions of the prosecution, the submissions of the defence and I take into consideration of all what the defence counsel say, I find that the appropriate sentence for this type of offending must be an imprisonment sentence.

The Defendant is reminded that he cannot obtain his sexual gratification at the expense of the weak and the vulnerable. Men who take advantage sexually of young people forfeit their right to remain in the community. It is only in exceptional circumstances that an imprisonment sentence be suspended. [See PP v. Kevin Gideon, Criminal Appeal Case No.03 of 2001].

The appropriate sentence is one of 8 months imprisonment.

The next question I ask myself is whether the circumstances of this case warrant a suspension of such a sentence.

In this case, the only aggravation is the difference of age between the Defendant and the girl of 13 years. The following mitigating factors justify a suspension:-

- The Defendant pleads guilty at the first opportunity provided to him.

- He is a first time offender.

- He is involved in the community.

- He apologizes to the victim girl of what he did to her.

- He performed a custom ceremony to the girl, her mother, her chief and family.

- The victim and her family accept the reconciliation process through the custom done to them by the Defendant.

- There were no other violence perpetuated in addition to the offence as committed.

The sentence of 8 months imprisonment is suspended for a period of 2 years. The meaning of suspension of imprisonment of 8 months is explained by the Court to the Defendant.

14 days to appeal.

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

BY THE COURT

Chief Justice
Vincent LUNABEK