Public Prosecutor v Tabimal [2004] VUSC 13; Criminal Case 037 of 2004 (26 November 2004)

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

Criminal Case No. 37 of 2004

PUBLIC PROSECUTOR

-v-

STELLIO TABIMAL

Mr. John W. Timakata for the Public Prosecutor
Mr. John Stephens for the Defendant

SENTENCE

This is the sentence of the defendant, Stellio Tabimal. The Defendant was charged and pleaded guilty to one count of Indecent Assault, contrary to Section 98 (1) (a) of the Penal Code Act [CAP. 135]. The maximum penalty set by Parliament is 10 years imprisonment.

Brief facts are summarized as follows:-

The Defendant indecently assaulted a child girl of 6 years old between March 2004 and August 2004. The Defendant came to Vila, Efate and resided with the father of the girl victim sometime in March 2004.

The Defendant is well known to the girl child. The Defendant is a relative of the victim girl and has been under care and protection of the victim’s father until the indecent assault was discovered. The Defendant indecently assaulted the girl from March 2004 to August 2004. On various occasions and the different periods of offending, the child girl was 6 years of age.

The series of indecent assault occurred after the Defendant came into possession of a pornographic material which he showed to the victim and proceeded to indecently assault the child girl by enacting materials and pictures contained in the pornographic material.

The Defendant indecently assaulted the girl child by doing the following:

(i) making the victim child suck his penis;

(ii) making the victim child masturbate him;

(iii) fingering the victim child’s vagina;

(iv) sucking on the victim child’s vagina;

(v) lying on top of the victim child and rubbing his penis on the child’s private part; and

(vi) ejaculate on the child.

The Defendant used threat of immediate harm including physical force to indecently assault the child.

The indecent assault only stopped when the victim got the courage to report the incidents to her mother who then reported the matter to the victim’s father and to the police.

The child was taken for medical examination and the findings of the medical examination were made in a report of 2 September 2004. The examination identified 2 abrasions to the victim child’s labia minora (the inner surrounding skin of the vagina).

The Defendant is a one of 25 years of age. He pleaded guilty. He performed a customary ceremony to the victim and her parents on 4 September 2004. The victim and her father was present in Court during the submissions as to sentence. The Court asked the child girl whether during the custom ceremony, the Defendant made custom to her. She said no. The Defendant made custom ceremony to her parents. The Court asked the child if she would be happy if the Defendant apologized to her directly in Court. She replied yes. The Court asked the Defendant to do so. The Defendant apologized to the child girl. She informed the Court her body is alright. She said she forgives the Defendant. She will forget the incident and she can go to school as she was at home looking after her sick (handicapped) mother.

The Defendant is a first time offender. This is a serious offence under Section 98(1) of the Penal Code Act [CAP. 135].

Section 98(1) provides:

No person shall commit any act of indecency within any age other person under the age of 13 years.

I have considered the circumstances of the case. I have assessed the aggravating features and balanced them with the mitigating ones. I have considered the factual circumstance of this case. They are very serious and are likely to constitute the offence of rape. It is fortunate for the Defendant that he was not charged with rape. I sentence the Defendant as charged in the present case.

The appropriate sentence is 7 years. I take away 18 months for his guilty plea. And I take away also 18 months for custom ceremony including the time spent in custody.

The Defendant is sentenced to 4 years imprisonment with immediate effect.

DATED at Port Vila this 26^th day of November 2004

BY THE COURT

Vincent LUNABEK
Chief Justice