Public Prosecutor v Robert Jimmy [1998] VUSC 78; CRC 026 1998 (27 October 1998)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CRIMINAL JURISDICTION

CR No. 26 of 1998

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PUBLIC PROSECUTOR

-v-

ROBERT JIMMY

Public Solicitor for the Defendant.

SENTENCE

The defendant was charged under Section 98(1) of the Penal Code for Indecent Assault where the penalty is 10 years as maximum.

The defendant pleaded guilty.

The prosecutor outline the brief facts of the offence and confirmed by the counsel for the defendant which I now confirmed the plea and find the defendant guilty as charged.

In the guilty plea, the counsel address the court too on sentence and by the prosecutor.

There was some uncertainty as to the right age of the defendant, as this is important in sentencing pursuant to Section 38 of the Penal Code. The only information as relied upon by the defendant’s counsel is the opinion expressed in the medical report and also on information that the defendant left school in 1994 at grade 5. He qualify this by submitting that at grade 5 in 1994, his age will be 11 years and by grade 6 he will be 12 years old, as this is the qualifying age for acceptance in high schools in Vanuatu. The parents of the defendant are on Tanna Island. Therefore, in absence of what is the correct age of the defendant, the Court is to form an opinion as to what is the most probable age of the defendant. In doing so, I do observe the defendant as a matured young person and in my view on observation I form the view that the defendant is just 15 years plus.

The defendant that morning after every one has left the room, saw Delaela lying on her side and came and slept close to her and took her pant half way down and pushed his penis in between the legs of Delaela. In this motion he also pushed his finger into Delaela’s vagina. He also pushed his penis to Delalela’s anus but not successfully as her anus was small and that is obvious. At the end of his indecent action he actually ejaculate satisfying the fact that he has completed his sexual desire.

The mother was told of this and as submitted by the defendant’s counsel she laughed about this as some sort of a joke. If this is true as stated by the defendant, through his counsel then I can only say a fool will only laugh on such serious indecent act toward her real child. Further given the fact that in the past women have taken to the street to air their views on men indecent behavior and violence towards female both old and young. For the mother to laugh about this is totally irresponsible and should be condemned or otherwise they too can be seen as contributing towards to child abuse. I saw that there was nothing to laugh about.

The offence carries a maximum penalty of 10 years. The defendant is 15 years plus of age and section 38 of the Penal Code restrict sentencing of young offenders under the age of 16 years. This is also stated in the Court of Appeal in Public Prosecutor –v- David Newell where section 42 of the Penal Code was imposed as the appropriate penalty. Both counsels too have submitted that Section 42 penalty will be the most appropriate penalty to impose to the defendant. I shall exercise that power. In exercising such power, I must say further that Section 38 is not restrictive but the Court can still sentence an offender and states its reasons for sentence under Section 38 (1). However, this can only be exercised if there is already an established institution in place for juvenile or if not, in a prison institution but separate from adults (16 years and over). Otherwise if not then Section 38 of the Penal Code will continue to restrict sentencing of offenders under 16 years of age and even for a second and subsequent conviction for the same offence. This imposes the duty on the government to establish such institution or if in the same prison institution then offenders under 16 years are to be separated. At this stage no information to say that there is one.

Even the suspension of Sentence Act [CAP 65] cannot apply to an offender under 16 years of age unless section 38 (2) is complied with. If section 38 (2) is not complied with, then the Suspension of Sentence Act can only be for sentences of offenders over the age of 16 years of age.

For these reasons I make the following orders under Section 42 of the Penal Code:

1. The defendant is convicted and before sentencing I impose the following conditions:

a) That before passing sentence , I order the Defendant to appear for sentence when called upon by the Court to appear for sentence within 3 years on the following conditions:

i) That within the period of 3 years, you shall not commit any offence and convicted for such offence;

ii) That you shall not consume any liquor, kava or take any unauthorized drugs. (I impose this condition as a form of control on the defendant in breaching of conditions.)

iii) That you shall not live together with Delaela in the same house as from today.

In the event that you are in breach of these conditions, then you shall be called upon for sentence.

2. That these conditions can be varied on application or additional conditions can be imposed by the Court.

DATED AT PORT VILA this 27^th day of October 1998

R. MARUM MBE
JUDGE

Ms. Kayleen TAVOA for the Public Prosecutor.
Mr. Stephen JOEL for the Public Solicitor.