Public Prosecutor v Gideon [2001] VUSC 118; Criminal Case No 028 of 2001 (18 December 2001)

IN THE SUPREME COUR/span>

THE REPUBLIC OF VANUATU

(Criminal Jurisdiction)

Criminal Case No.28 of 2001

PUBLIC PROSECUTOR

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KEVIN GIDEON

Coram: R. Marum J. MBE

Ms. Miranda Forfyth for the Prosecution

Mr. Hilary Toa for the Accused

SENTENCE

The defendant pleaded “guilty” to the charge of unlawful sexual intercourse w with the girl A. Mael, who was under 13 years of age at that time. The girl continued to bleed due to such act of senseless sexual intercourse. She was very sick with it, and even did not go to school. I can understand her feelings of being ashamed if her friends finds out. The defendant knew that she was bleeding and continued to have sex with her. She could not tell others immediately, as she was threatened by the defendant not to tell others. She was an immature age anld easily fily frighten with fear that the defendant will assault her or may do other things to her if she tells others. The defendant took adge of this fear and continued to have sex with her.

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least the defendant was staying together with the girl’s ml’s mother sister. The question why take on the victim of younger age as he was already living together with the girls mother sister in a de facto relationship. The defendant believed that the girl was over 13 years as he saw her as a big girl and also from her behaviour. On this belief section 97 (3) of the Penal Code Act provides no defence, even to believe that the girl was over 13 years also not a defence.

Section 97 (3) states: -

“It is no defence to a charge under this section that the girl consented or that the person charge believed that she was over the age in question.”

There was some customary settlement was made where the defendant paid VT30,000 fine to the girl’s relatives, also the chief, a pig, 1 mat as customary settlement.

I will refer to one of my earlier sentence in the case CRCR 08 of 2000 PP –v- Peter Wayane & Others on customary settlement, this what I refer to:

“a defendant commits an offence must pay the price for ther the penalty prescribed by such offence and any customary settlement cannot exchange such punishment but can only be use to ease the ill feelings between the parties and their relatives and … benefit sentence.”

The two cases referred to me, one PP –v- Waina KoiloNo. 42/97, /i>, >, was charge for rape under Section 91 and also unlawful sexual intercourse under Section 97. The defendant pleaded guilty to the offence under Section nd the charge of rape was wwas withdrawn. The circumstance is different to the defendant’s case. Also the case PP –v- Willie Robert Cr. No. 56/97, the girl was pregnant and gave birth to a child. The circumstance of this case is that the victim continued to bleed and even did not go to school.

In sentencing the case PP –v- Peter Wayane is the offence for rape an and the maximum period of sentence is life imprisonment where as this case is 14 years. In the defendant’s case, I will impose a custodial sentence as the appropriate penalty as a punishment and also deterrence to others. I sentence you to 18 months imprisonment. In sentencing, your pleading guilty and customary settlement was taken into account. On the basis of customary settlement the court is of the view that a suspended sentence will serve a better purpose and the 18 months sentence is suspended for a period of 24 months on the condition that you shall not be convicted of any offence within the period of 24 months. If you do you shall be arrested and put to prison to serve now your sentence of 18 months.

Dated at Port Vila, this 18^th day of December 2001.

R. MARUM MBE

JUDGE.