Public Prosecutor v Morsen James [2000] VUSC 66; Criminal Case No 007 of 1999 (14 November 2000)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

LAKATORO / MALEKULA

(Criminal Jurisdiction)

Criminal Case No.7 of 1999

File No.36 of 1999

PUBLIC PROSECUTOR

-VS-

MORSEN JAMES

Coram: Before Justice Oliver A. Saksak

Miss Wendy Wanemay – Clerk

Inspector Wilson D. Garae for the Public Prosecutor

Mr Kiel Loughman for the Defendant

SENTENCE

The defendant is dischargeh unlawful sexual intercourse contrary to section 97(n 97(2) of the Penal Code Act [CAP.135] (the Act). He pleads guilty to the charge.

The defendant admits having unl sexual intercourse with Merilyn Freddy on or about 12^th January 1994. Th4. The victim was born on 3^rd September 1979. She was about 13 years old at the time of the commission of the office. Her certificate of birth confirms that. The incident took place in the victim’s own home when her parents were not at home. They were discovered by the victim’s grandfather. The defendant was then a single boy. He has now got married and they have a child of 3 years old with a woman called Hagar. She is now 6 months pregnant with a second child. The defendant is a subsistence farmer, a non-drinker and a soccer player. He has no past criminal record. After the incident a meeting was held in which the defendant paid a fine of VT1,000 for the offence he committed, a further VT1,000 for trespass and further VT1,200 as compensation.

It is submitted on the defendant’s behalf that this case falls within section 15(b) of the Act and therefore that it is time-barred. Section 15 reads:-

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Section 97(2) reads:-

“No person shall have sexual intercourse with any girl under the age of 15 yearsof or over the age of 13 ye13 years.

Penalty: Imprisonment for 5 years.”

Section 15 of the Act places a discretion on the prosecution. Here the prosecutions have exercised that dison in view of the sere seriousness of the offence.

Considering section 97(2) in the light of section 15(b) of the Act and the circumstances of the defendant especiallt he has paid a fine fine of VT3,200, that he is of clean past record, that he is now married and maintaining a family who have forgotten all about the case after 6 years 10 months, the most appropriate I can impose is a conviction and a discharge under section 43(4) of the Act.

I accordingly convict the defendant but order that he be discharged without sentence.

DATED at Luganville this 14^th day of November, 2000.

BY THE COURT

OLIVER A. SAKSAK

Judge