Public Prosecutor v Saul [2003] VUSC 64; Criminal Case No 006 of 2003 (17 October 2003)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

Criminal Case No. 06 of 2003

PUBLIC PROSECUTOR

–v-

WILLIAM MATHEW SAUL

Coram: Justice Treston

Mr. Len Tevi for Public Prosecutor
Mr. Toa for the Accused

SENTENCE

Mr. Saul you appear for sentence today on a charge of incest. That is a charge that carries with it the potential of ten years imprisonment and that is under section 95 (2) of the Penal Code [CAP 135].

The victim is 23 years of age and is your sister as you were both born from the same biological mother. She comes from Malekula and you from Paama. As a young girl she went to live with an Aunt on Emau Island. In 1999 she returned to Vila and went to live with her mother and her step father, where she met her boyfriend and went to live with him and bore a child to that relationship in March of 2000. Because of her boyfriend's heavy kava drinking that relationship ended so she returned to live with her mother and step father.

During June and July 2000 you started making sexual advances to her and it was in August 2002 that you took advantage of the fact that your mother and step-father had gone to church assembly to have sexual intercourse with her. This occurred during the night time. She tried to dissuade you from your actions but you had intercourse with her nevertheless. Intercourse continued on many occasions from August 2002 until December 2002. The summary indicates that the acts were often accompanied by threats and violence and that none of the actions were consensual. You also threatened her harm should she try to go away from you to live somewhere else. On one occasion on 6 December 2002 you assaulted her causing bad bruising to her upper arm. She complained to relatives and ultimately to the police. You admitted the allegations to the police.

I have heard from the Prosecution in relation to this matter. The Prosecutor has referred various authorities to me, which I have noted and taken into account. The sentences he refers me to range from 3 years to 9 years imprisonment. The Prosecutor accepts that your particular case falls at the lower end of those sentences. Many of the complainants in those cases were younger, some of the complainants were the daughters of the respective accused. The 3 years sentence related to a similar factual situation to yours. As I say the Prosecutor accepts that your case falls at the lower end of that sentencing range.

Counsel on your behalf submits that there are mitigating facts which I should take into account. They include your plead of guilty, the lack of aggravating features, which I will refer to it shortly, your cooperation with the Police and your clean record with no previous convictions. It is said that you are remorseful and ashamed. You have a girlfriend who is about to give birth to a child. I am referred to the case of Public Prosecutor v Louman CR04/03 where this Court sentenced an accused to 3 years imprisonment and suspended that for three years. I am urged to impose somewhat less and to suspend the sentence.

There are clearly aggravating features in your case. They include actual and threatened violence, actual violence was admitted on one occasion, and the fact that the incident of incest happened more than once. Clearly the victim was vulnerable because of your threats and violence and she suffered, as I say, physical injury when her arm was badly bruised.

Certainly there are mitigating facts to be balanced against the aggravating ones. I take into account that you pleaded guilty, that has, of course, avoided the necessity of the victim having to come to Court and to give evidence. I take into account your remorse and shame, they are mitigating factors. I take into account your previous good character, bearing in mind that you have no previous convictions.

However, balancing those facts one against the other I must look at the relative gravity of the offending. The least restrictive outcome for sentencing must be the one I should adopt but I need to denounce your conduct and deter likeminded offenders from acting in this way. I must protect the community and particularly the victim.

I bear in mind the approach the Court has taken in sentencing offenders for this particular crime. It is my view that such an offence is not one where it is appropriate, in your circumstances, to suspend any term of imprisonment. The Court of Appeal in Public Prosecutor v Gideon CRC03/2001 has said that it would only be in a most extreme of case that suspension could ever be contemplated in a case of sexual abuse and clearly a case of continued incest involving threats and violence could not be regarded as anything other than sexual abuse. From what I have said, I disagree that there were no aggravating features.

I take into account that you have been in custody for some time already and allow for that to be taken into account. I bear in mind your domestic circumstances and your responsibilities to your forthcoming child. I accept that this victim was not a child nor inexperienced but nevertheless you took advantage of her in the ways I have described.

You are today sentenced to imprisonment for 3 years. I remind you that you have the right to appeal this sentence within a period of 14 days.

Dated AT PORT VILA, this 17th day of October 2003

BY THE COURT

P. I. TRESTON
Judge