Public Prosecutor v Gupan [2000] VUSC 41; Criminal Case No 205 of 2000 (10 August 2000)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Criminal Jurisdiction)

Criminal Case No.205 of 2000

PUBLIC PROSECUTOR<

-VS-

WILLIAM GUPAN

Coram: Before Judge Oliver A. Saksak

"> Ms Cynthia Thomas - Clerk

Inspector Wilson D. for Public Prosecutor

Mr Hillary Toa for the Defendant

SENTENCE/p>

On 7^th August, 2000 the defendant was arraigned on one count of Indecent Assault contrary to section 98(1), and one count of Attempted Incest contrary to sections 28 and 95(a) of the Penal Code Act CAP.135. He pleaded guilty to both counts.

The briefs facts of the case are that on 12^th July 2000 atdefendant's home at Hog Harg Harbour village, East Santo the defendant indecently dealt with and attempted to have carnal knowledge of his own daughter. The girl is aged 12 years and attends class 5 at the village primary school. On the day the incident took place the mother was away from home. She returned on 13^th July and the girl reported to her what her father had done to her the day before. She told her of how her father had asked her into the house and making her undress and how he tried to make love to her. She told of how the defendant had touched her private part and how he laid on top of her attempting to have intercourse with her. She told of how her father had withdrawn after he found out that the girl's organ was too small for him. She told of how her father warned her not to tell on him to her mother and that he would examine her again within 3 months.

The defendant made a voluntary statement to the police4^th July 2000 admitting the allegations. Hns. He surrendered himself to the police and cooperated with them. The only reason he gave for his action is that he was tempted by the girl who is his only daughter among 4 other brothers. He claims that each time the girl had had a bath she would call for her father to bring her clothes.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> On the basis o defendant's admissions the Court entered convictions against him in respect of both both charges.

lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The Court was ty Mr Toa during plea in mitigation that the defendant was a man of no previous convictions. That what he did was totally out of character. He is a man of 5 children all except the second born son does not attend school. I am told that he is facing some financial difficulties and as such his wife has made an additional statement intending to withdraw the charges against him. I am told that the defendant has a medical condition for which he produced a certificate from the doctor. I am also told that the defendant has recommitted his life to God whilst is custody and he now seek forgiveness from God and from the Court. I am further told about a letter from the chiefs at Pango which was tendered, imposing a customary fine on the defendant. The Court was asked to take these factors into account in considering sentence and it was submitted that under those circumstances, a suspended sentence was an appropriate penalty.

p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The Court way concerned about what the defendant said about re-examining his daughter in 3 monthsonths time. That is a clear indication that this defendant wants to repeat what he did. This is the reason why this man deserved a custodial sentence and not a suspended sentence.

For those reasons and taking those factors as submitted into account the Court imposed llows:-

(a) ;&nspp; Isdecent Assault - lt - imprisonment for 10 months.

0pt">&nbsp

These terms are to run concurrently to reflect the seress of the matter.

In total, the defendant will serve a term of 16 months imprisonment. It is ordered that any period the defendant has already spent in custody be deducted accordingly.

PUBLISHED at Luganville this 10^th day of August, 2000.

BY THE COURT

OLIVER A. SAKSAK

Judge