Public Prosecutor v Tovon [1998] VUSC 39; Criminal Case No 076 of 1997 (18 August 1998)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

HELD AT LUGANVILLE/SANTO

(Criminal Jurisdiction)

Criminal Jurisdiction 76 of 1997

(File No.10/97)

PUBLIC PROSECUTOR

-VS-

TECI TOVON

Coram: Mr Justice Oliver A Saksak

Cynthia Thomas - Clerk

Counsel: Mr Willie Daniel - for Public Prosecutor

Mr Hillary Toa - for the Defendant

SENTENCE

This man appeared before the Court on 18th August charged with one count of indecent assault contrary to section 98(2) of the Penal Code Act [CAP.135].

It is alleged against the Defendant that on or about 7th July 1996 at Avunatari, Malo Island he indecently assaulted one Votari Moliwari by inserting his finger into her vagina rupturing her as the victim was a virgin. The Defendant pleaded guilty to the charge.

The Prosecution referred to the evidence in the statements of -

(a) The victim showing her age at 43 years old who is never married. She describes how the defendant grabbed her and led her with some force away from their latrine. He made her sit on the ground and the Defendant inserted his thumb into her vagina. She said she felt pain as she had never known a man in her life. She said she saw blood come out and she just cried. She returned to the house and her mother saw the blood and enquired what happened. She told her what happened. They bathed her and then took her to the dispensary where she was examined by Nurse Norah Aka who examined her and treated her by prescribing some tablets. She made a Report which was referred to by the Prosecutor.

(b) Rita Moliwari, the victim's mother made a statement in which she says that Votari is handicapped. She confirms seeing blood on Votari's dress. She confirms bathing her in water and taking her to the dispensary for examination. She confirms her age at 43 years and never married due to being handicap.

(c) Rina John confirms that she saw blood coming out of Votari when her cousin sister Rita told her what happened and she came around to help her bath Votari. She confirms she saw blood floowing from Votari's vagina.

(d) Nurse Norah Aka made a written report dated 8th July 1996. She confirms that Votari is handicapped. She examined the victim some 4 hours later and saw as follows:-

(i) vaginal tear

(ii) painful on touching

(iii) swelling around the area

(iv) back pain

(v) blood clos in the vagina

(vi) victim would not walk.

She treated her and prescribed for her penicilin, panadol and amoxycillin tablets.

(e) Alick George, Police Officer who interviewed the Defendant says in his statement that the Defendant admitted dealing indecently with Votari.

The Defendant made a statement under caution tot he police on 3rd September 1997 admitting indecently assaulting Votari. His only reason is that he was driven by his natural desires and after he discovered that the victim's sexual organ was not normal he did not have sexual intercourse with her. Instead he inserted his finger into her vagina.

On this evidence and on the Defendant's own admission the Prosecution has shown beyond reasonable doubt that the Defendant committed the offence of indecent assault.

In mitigation Mr Hillary Toa pleaded for leniency on behalf of the Defendant. He told the Court that the man was a married man born in 1941. They have no children. His wife is diabetes and has undergone some serious treatment. She has lost two of her toes as a result. She spends most of her time in hospital. At the date of hearing she was in hospital and her husband the defendant has been alongside her all the time. Indeed she was in the Court room and she confirmed all that Mr Toa said.

The Defendant is the only bread-winner for himself and his wife. They own two water tanks in the village which they allow everyone to use. Indeed it was said that the victim and her mother who is a widow are beneficiary also of the Defendant's water. It was said that the victim had made some gesture to the Defendant, suggesting she was interested in him. This provoked the defendant's desire to have sex with the victim. He gave consistent facts about insertion of finger into her and admitting seeing blood.

As regards the medical report Mr Toa submitted that it shows no stitches was done probably negativing the claim for vaginal tear. Further he submitted that as the Report shows that the victim is "normal now" that there was no resulting cause. He told the court that the Defendant had paid a fine of vt500 tot he victim in July 1998. He told the court that the Defendant was truly sorry for his actions and undertook not to repeat those actions. The Defendant had no previous convictions. He cooperated with the Police. Mr Toa submitted that as an old man the Defendant was not a threat to society and urged the court to discharge him with a serious warning.

In sentencing the Defendant I took into account all that was said on his behalf in mitigation. I do not accept the submission that as an old man this man no threat to society.

I am of the view that if he saw fit to do what he did o a woman who was a handicap, there can be no guarantee that he could do the same to a normal female. Indeed it would be true to say that old men in similar circumstances are prove to fall as easy victims to their sexual desires or drive. (See Public Prosecutor -v- Salili)

I accept however that the court should be lenient as the woman is fully grown. There is no physical permanent injury. The Defendant has to look after and care for his sick wife who spends most of her time in hospital in Luganville.

For those reasons I sentence the Defendant to 1 year imprisonment suspended for a period of 3 years.

DATED at Luganville this 18th day of August, 1998.

BY THE COURT

OLIVER A SAKSAK

Judge of the Supreme Court