Public Prosecutor v Mael [1998] VUSC 92; CRC 018 1998 (23 November 1998)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CRIMINAL JURISDICTION

CR No. 18 of 1998

PUBLIC PROSECUTOR

-v-

GIDEON MAEL

Public Prosecutor for the State
Public Solicitor for the Defendant.

SENTENCE

The Defendant pleaded guilty to the offence of incest under Section 95 (1) of the Penal Code Aich the maximum penalty they the Court can impose is 10 years imprisonment. Her daughter was at that time was in grade 6 and on passing of her grade 6 exam was selected to go to high school. She could not make it to the high school as she was than pregnant. The medical report shows that she was born on the 19^th March 1984, which means that in August 1997 when the sexual intercourse first took place she will be just 13 years old. The defendant threatened her to have sexual intercourse with him, even he threatened her not to tell others about it and if she dose than he will assault her. The threat to her, mainly of that age is quite very, very, serious and what where there is a father and daughter relationship in the family. In my humble view the girl was also ashamed of reporting the matter simply because the defendant was her real father so she was in an embarrassing situation to report their sexual relationship and the defendant took advantage of this and continued to threatened her to have sex with her at his desire.

The defendant gave reasons of having sexual intercourse with her was due to the mother is not staying together with him and she also goes around with other men. These are not excuses in law to justify or give a right for the defendant to have sexual intercourse with his daughter and these excuses do not stand at all for any consideration mainly in sentence.

What I do not understand why the real father have to have sexual intercourse with her own daughter, when it is against the law, the law of nature and even in custom as, even to claim of custom, it will also fail for the simple reasons that if there is a conflict between custom and the law under Section 95 (1) then the law prevails. This means that any arrangements as to customary settlement will be of no excuse.

This is the worse kind of incest committed by both the father and daughter and what more a child has been born to that relationship.

The Defendant has treated his daughter as a wife, if this is so then no right minded father would do that to her real daughter or it takes only a very, very sick minded person to do such acts. What you have done to your daughter in my view is beyond any reasonable minded person to understand or comprehend to be decent behavior from the real father of the girl which is you the defendant yourself.

Compensation as paid does not compensate the wrong that the defendant has done, as the child will be his own child from his own daughter and the child will continue to remain your child. What happen when that child grows up and find out the way the child came about.

The court must impose severe penalty in this type of cases to reflect the seriousness of the offence itself and the circumstance as to how the offence was committed and further to try and prevent such unwanted sex behaviour and that I consider a custodial sentence would only be the appropriate penalty as a punishment and also as a deterrence to others. In imposing such penalty I have also taken into consideration your free will admission and of no previous conviction. Therefore I will sentence you to three years and period of six months and one week in custody shall be deducted which you will now serve two years five months and three weeks.

DATED AT PORT VILA this 23^rd Day of November 1998.

R. MARUM MBE
JUDGE

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