Public Prosecutor v Willie [2003] VUSC 99; Criminal Case 048 of 2003 (11 December 2003)

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

Criminal Case No. 48 of 2003.

PUBLIC PROSECUTOR

-v-

ATIS WILLIE

Mr. Eric Csiba for the State
Mr. Bartels for the accused

SENTENCE

Mr. Willie, you appear for sentence today on two charges of Unlawful Sexual Intercourse with girl under care and protection. The charge of unlawful sexual intercourse with girl under care and protection is a very serious crime and carries a maximum penalty of 10 years. You have pleaded guilty to both charges.

The victim is 17 years of age and is your step daughter. You have been living together with her mother in a de facto relationship since 1995. This is a period of some 8 years. During this period you have been playing the role of a father to the victim and her two sisters and three brothers. You have been helping their mother caring for them. In other words, you have been taking care of them and treating them as your own children. They have been under your care and protection. They look up to you as their father for protection, comforts and other needs that a father provides for his children.

You lived with the victim’s mother for sometime on Epi before moving to Port Vila. Around June 2003, the victim came to live with you at Namburu, Port Vila. It was during this time in June that you took advantage of the fact that her mother had gone to work at Manples, she was alone in the room, lying on a mat faced down because she had a headache. You approached her without her knowledge and held her down and had intercourse with her. You told her to keep quiet. You commanded her what to do to enable you to continue to have intercourse with her.

When you had finished having intercourse with the victim you told her not to tell anyone, that if she did, you would kill her. These were threatening words that you used to ensure that your unlawful act must remain a secret.

In October 2003, at Forari, you again had sexual intercourse with the victim. Again you took advantage of the fact that she was alone in the garden. You took her by her hands and pulled her into the bush and had sexual intercourse with her. After this second incident the victim ran to her uncle Alick and told him about the incident and then later told her mother and ultimately the Police.

I have heard from the Prosecution in relation to this matter. The prosecutor has referred the Court to two authorities namely, PP –v- John Douglas Obed, Criminal Appeal Case No. 10 of 2002, and PP –v- Albert David, Criminal Case No. 5 of 2002. In these cases the accused were sentenced to 2 years and 18 months respectively for having sexual intercourse with girls under their care and protection. The prosecutor has asked me to impose a much more severe sentence on you because of the aggravating features in your case. These include:-

☞ Having unlawful sexual intercourse with a girl at that time in your care and protection.

☞ Having unlawful sexual intercourse with a girl at that time in your care and protections, not once but twice.

☞ Knowing that having intercourse with the victim is wrong but you went ahead.

☞ Use of physical force to subdue the victim.

☞ You threatened the victim not to tell anyone and that if she did you would “kill her”.

It is not clear from the statement of the accused when she said “hemi talem long mi se bai mi no mas talem aot long eni man sapos no bai hemi kilim mi”, whether you were threatening her with death or bodily harm. It is not the intention to ascertain what is the proper meaning of the phrase “bai hemi kilim mi” as it was not raised as an issue before the Court. However, it suffices to say the utterance of the words amounts to a threat of some sort of harm to be inflicted on the victim if she talked to someone about what had just taken place.

Counsel on your behalf submits that there are mitigating facts which I should take into account. They include:-

☞ You are 28 years old and you have seven children.

☞ You are a first time offender.

☞ You know what you have done is wrong, and you have said sorry to the victim through a custom settlement.

☞ You have performed a custom ceremony on 16^th November 2003. Items given to the victim and her family are, 1 kava root, 2 mats, 1 pig and VT10,000.

☞ A reconciliation took place between the parties at that same custom ceremony.

☞ You have made matters easier for the Court by pleading guilty to the offences you have been charged with, even though you didn’t have to do so, as the law places the onus of proving your guilt beyond reasonable doubt on the prosecution.

☞ In doing so, you have spared the victim further pain and humiliation of having a full trial, and saving the Court’s time.

Counsel on your behalf has referred me to the cases of PP –v- Stanley Marango Criminal Case No. 6 of 2002 and PP –v- Kalto Citangtang Criminal Case No. 596 of 2000. In the former case the accused was sentenced to 11 months in prison for having sexual intercourse with his step daughter. In that case no force was applied and the act of sexual intercourse occurred once only. In the latter case the accused was sentenced to 5 months imprisonment term for having sexual intercourse with a girl under his care and protection. The incident occurred once only. A custom ceremony was performed in which certain gifts and VT20,000 were offered to the relatives of the victim. It was a mark of sorry and reconciliation.

The offences you have been charged with are the same, as the accused in each of the cases cited above. What you did to ensure that you had sexual intercourse with the victim on each occasion is different to the cases referred to me.

Indeed the law is not a precise art when it comes to sentencing. The term of a sentence varies from case to case depending on the nature of each case.

Certainly there are mitigating facts to be balanced against the aggravating ones. I take into account that you pleaded guilty and saved the Court and others, a lengthy trial. In doing so, you have also avoided having the victim appear in Court and giving evidence. I take into account your remorse and that you had said sorry to the victim, certain items, including 1 pig and VT10,000 had been offered to the victim and her relatives. They are mitigating factors. I take into account your previous good character, noting that you have no previous convictions.

However, I must balance those facts one against the other bearing in mind that Parliament has declared the offence to be a serious one attracting the maximum penalty of 10 years in prison. I need to denounce your behaviour. Sexual offences and especially of the nature that you have committed are serious offences. It touches at the heart of the family value, the relationship, the trust that the young person has in you is shattered. You have betrayed that.

Taking into account the mitigating factors put to me by counsel on your behalf and bearing in mind the approach taken by the Court in sentencing offenders for this type of crime, it is my view that, in your circumstance it is not appropriate to suspend any term of imprisonment. A custodial sentence would be appropriate to serve as a deterrence to others in taking advantage of young persons under care and protection.

Count 1 Sometime in June 2003 at Namburu, Vila, you had unlawful sexual intercourse with your step daughter, a girl under your care and protection. I am sentencing you today to a term of 7 months imprisonment.

Count 2 Sometime in October 2003 at Forari, East Efate, you had unlawful sexual intercourse with your step daughter, a girl under your care and protection. I am sentencing you today to a term of 5 months imprisonment. You will serve a total of 12 months. That is a sentence you can appeal in 14 days.

MADE at Port Vila, this 11^th day of December 2003.

H. BULU
Judge.