This defendant pleaded not
guilty to one count of rape contrary to section 91 and to one count of
unlawful sexual intercourse
contrary to section 97(1) of the Penal Code Act
[CAP.135] (the Act) on 5th July, 2000. He applied for bail which
application was refused. He was remanded in custody until 7th
August, 2000.
Oup>th August, 2000
Inspector Garae informed the Court that the Prosecution had had withdrawn the
charge of rape against the
defendant. Accordingly the charge was dismissed.
In addition, Inspector Garae sought leave to amend count 2 to Attempted
Unlawful Sexual Intercourse contrary to sections 28 and 97(1) of the Act.
Leave was granted and the statement and Particulars
of Offence were amended
accordingly.
The defendant was re-arraigned
and pleaded guilty to pted sexual intercourse with a girl aged 11 years
on on 2 March,
2000 at Namoru Village, South Santo. The incident took place at
night in the defendant's house after he had grabbed her by
the hand and led
her to the house. In his room, he made her touch his penis and when he asked
her for sex she refused.
This made the defendant cross and he took a piece
of wood and hit her with it. Despite being hit, the girl still refused but
that the defendant managed to remove the girl's clothes and attempted to
have sexual intercourse with her.
On the basis of his admission
to attempted unlawfxual intercourse, the Court entered a conviction
agai against the defendant.
In mitigation Counsel for the
defendaferred the Court to the Case of Public Prosecutor -v- Olv- Oliver
Tutuku unreported judgement dated 11th May, 2000. The Court
there in considering sentence said in paragraph 2 as follows:-
"He pleadilty to the
amended charge which had he done in OctobOctober 1999 would have afforded him a
suspended sentence."
The defendant in that case was
sentenced to 9 months imprisonment for attempted unlawful sexual
intercourse. Counsel submitted
to the Court that the case there was
different from the present case in that the amended charge was a new one.
Essentially
what Mr Toa was trying to submit to the Court is that although
the defendant did not plead guilty in the first place, and having
pleaded
guilty after the Prosecution amended the second count, should not be held
against him as deliberate to forfeit
his right to a suspended sentence.
In sentencing the defendant the
following additional rs as submitted by Counsel were taken into
consideratderation in
mitigation:-
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The deft dant is a young man of 20 years with no previous criminal
record.
: 1">
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2. &   &nbp; &&nbp;; &nnsp;& &nbp; &nbp;
Hadpleguilty tlty to the amended charge. He could not have pleaded
guiltyup> J000 as he ntitl plea guilty.
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4. &nbp; &nnbp;&&nbp;;&nbpp; &nsp; p;&nssp;
He is remorseforseful. He has asked forgiveness from God and from this
Court. He has realised after spg abomonthcustody the
gravity
is ac and owed not not to reto re-offe-offend.span>
5. nbsp; p; ; &nbbp; &nbp; &nbs; p;
He has has undertaken to perform and settle matters between the
complainant and her relatives in aance custopan>
6.&n;"> & &nsp; &nbssp; &nbssp;
Than>There is no indication or suggestion that he will rehis as.
p clasoNorstyle="marop: 1gin-b: 1"> n0pt"> 
In my view what made the case
serious than Oliver's case is the fact that the defendant dant took a piece
of wood and
hit the complainant with it. Had he hit her on a vital part, it
would have caused some serious results. For this reason I was
of the view
that his punishment should be more than Oliver Tutuku's. 10 months
imprisonment therefore is the appropriate
sentence to be imposed. However I
ordered that this sentence be suspended for a period of 2 years under the
provisions
of the Suspended of Sentences Act Cap.67.
PUBLISHED at Luganville this 10th
day of August, 2000.
BY THE COURT
OLIVER A. SAKSAK
Judge
