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Public Prosecutor v Mogeror [2007] VUSC 83; Criminal Case 33 of 2007 (8 August 2007)

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

Criminal Case No. 33 of 2007

PUBLIC PROSECUTOR

-v-

MANONG MOGEROR

Coram: Justice H. Bulu

Counsels: Mrs. Viviane Laumae for the State
Mr. Jacob Kausiama for the Defendant

Date of Hearing: 1 August 2007
Date of Decision: 8 August 2007

DECISION ON SENTENCING

Introduction

1. The Defendant was charged with one count of unlawful sexual intercourse contrary to section 97 (2) of the Penal Code Act [CAP. 135]. That subsection states “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.”

Background

2. The victim was born on 17 January 1992. At that time of the offending she was 14 years old. The first sexual encounter occurred during the second week of November 2006, and secondly on 27 December 2006. There were other times when sex occurred in the bus driven by the Defendant but the dates are not clear.

3. The sex did not happen the first time they met. It occurred as a result in the growing relationship they had. The sexual acts were not forced on the complainant, but she was a willing partner all along.

4. The complainant however, was only 14 years old at that time of the sexual encounters. Thus the sexual acts are prohibited by section 97 (2) of the Penal Code Act.

Considerations

5. It is trite law that ignorance of the law is no defence to any criminal charge. The Defendant may not have known or realized that the complainant is only 14 years old. That is unfortunate. However, the law does not change simply to account for lack of such knowledge.

6. The aggravating features of the offending are:-

(a) the complainant was only 14 years old during the various times sexual intercourse happened;

(b) sexual intercourse was repeated.

7. The key features of the criminal justice system is that the penalty imposed by the Court should be such that it:-

(a) marks the gravity of the offence;

(b) punishes the defendant;

(c) protects the community by deterring others; and

(d) protection of women or girls.

8. Another important element of the Vanuatu Criminal Justice system recently introduced by the latest amendments to the Penal Code Act and the Correctional Services Act is that the penalty should where appropriate include sentences that will or should help the offender rehabilitate and re-integrate into the community after serving his or her time upon sentencing.

9. It is the Court’s duty to take into account these important features of our criminal court system and, as far as is possible, arrive at a sentence that is appropriate in the circumstances of a case.

10. The mitigating features are that the Defendant:-

(a) was 21 years of age at the time of the offending. A young man in his prime;

(b) is a first time offender;

(c) pleaded guilty at the first opportunity;

(d) has shown remorse and is sorry for what he has done.

11. What is the proper sentence in the circumstances of this case.

12. The complainant was only 14 years during the different times sex occurred during the relevant period. That was against the law.

13. Sex came about as a result of a growing relationship. The sexual incidents were not forced on her but rather she consented to and was a willing partner in all the sexual encounters.

14. This, in my view, is a situation where, if the Court were to use a scale to determine the seriousness of the offending, it will appear at the bottom part of the lower end of the scale.

15. I take heed of the message that the Court ought to send out to all men through the sentence it imposes that:-

- young girls must be protected;

- men who engage in sexual intercourse with young girls must be punished;

- the punishment must deter others from engaging in the same offending.

16. The circumstances of this case, in my view, will include those elements, but must also be seen to contain the rehabilitative feature also. This is a young man who has committed a wrong, an offence under our penal laws. The circumstances in which the offending occurred appears to be a natural progression in a relationship between a young man and a young woman, who appeared to be older than she really was at that time of the offending.

17. By pleading guilty at the first opportunity the Defendant has spared the Court time and the complainant a somewhat difficult and embarrassing time recounting what occurred between them on various occasions when they had sexual intercourse during the relevant period. He has made attempts at reconciling with the complainant and her family but they have taken a stand that makes reconciliation most difficult or impossible. In the pre-sentence report prepared on him for the purpose of sentencing aid to the Court he still wants to be given the opportunity to make peace with those he has offended, including the complainant, as a consequence of the offending.

Sentencing

18. The appropriate sentence in the circumstances of this case, in my view, is an immediate custodial sentence of 18 months. One third is deducted for the guilty plea. Two months is further deducted for the other mitigating features. The custodial sentence is suspended.

19. Mr. Manong Mogeror, I now sentence you instead to undergo a sentence of supervision for a period of 10 months. I am satisfied that a sentence of supervision is the appropriate sentence in the circumstances of your case that would reduce the likelihood of your offending through your rehabilitation and integration back into the community.

20. Mr. Manong:-

(a) You must report in person to a probation officer as soon as practicable and not later than 72 hours after the proceedings today;

(b) You must report to the probation officer as and when required to do so by that probation officer and must notify the officer of your residential location;

(c) You must not move to a new residential location without the prior written consent of the probation officer;

(d) You must take part in a rehabilitative and re-integrative needs assessment and/or programme if and when directed to do so by the probation officer;

(e) You must organize a reconciliation ceremony through the probation officer, in accordance with custom, to reconcile with the complainant and her family within 60 days of today;

(f) You may contact the complainant but only under the supervision of the probation officer for the purposes of arranging the reconciliation ceremony.

DATED at Port Vila, this 8th day of August, 2007.

H. BULU
Judge.