Public Prosecutor v Dick [2004] VUSC 2; Criminal Case No 01 of 2004 (17 March 2004)

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

CRIMINAL CASE No. 01 of 2004

PUBLIC PROSECUTOR

-v-

GEORGE DICK

Coram: Chief Justice Lunabek

Counsels: Mr. Nicholas Mirou Public Prosecutor
Mr. John William Timakata for the defendant

SENTENCE

This is the sentence of the defendant, George Dick. The defendant was charged with the offence of Incest, contrary to Section 95 of the Penal Code Act [CAP. 135]. He pleaded guilty to the offence as charged.

This is a serious offence as reflected by the maximum penalty imposed by Parliament of 10 years imprisonment.

The facts show that the case is about a father sexually abusing, molesting his daughter for a number of years. The incident started in 1998 when the girl victim was 8 years of age until the matter was reported to the girl’s natural mother and to the police in late November 2003.

The defendant is 35 years of age. He is from the Island of Tongoa, Meriu Village. He is employed as a Chef at Melanesian Hotel. The Court is informed by the defence counsel about the following:

1. The accused concedes and acknowledges that the offence he has pleaded guilty to is a serious offence.
   
2. He recognizes he has failed and abused his position of trust in that his action has caused hurt and suffering to the complainant.
   
3. He also understands that his behaviour and action has not only hurt the complainant’s natural family as well as his own wife and family but has betrayed their confidence and trust in him.
   
4. He has expressed deep remorse to his counsel for what has happened. The genuiness of his remorsefulness was shown on December 1^st, 2003 where the defendant instructs that he has gone through a customary ceremony of apology and forgiveness towards the complainant. He instructs that he has also apologized and sought forgiveness in custom to the following families: the complainant’s natural parents and their chiefs as well as to his wife, his family and his chiefs.
   
5. The defendant has been punished in accordance with custom by his chiefs as well as gone through a customary ceremony for apology and forgiveness.
   
6. For the customary fines and ceremony for apology and forgiveness he used the following: 5 large pigs (with tusk) valued at VT40,000 each; 5 big head s of fresh kava with their leaves; sugar can; local foods; mats and an amount of VT95,000 cash.
   
7. The Chiefs have also divested the defendant from all authority over the complainant and have returned the complainant to the natural parents in accordance with custom.
   
8. His employment record shows George Dick to be a committed hard working and honest young man.
   
9. George Dick’s previous record is unblemished. He is a first time offender.
   
10. He is also well regarded in his community as a person who has respect for other members of the community and its leaders and who assists the community by contributing to the welfare of the community.
    
11. Within his immediate house hold he instructs that he is married to Roslyn and they have a daughter aged 8 years old. He has a son aged 12. He has been and continues to be the sole income earner.
    
12. Through his dedication and hard work he has been able to afford a land upon which he has built his family home at Beverly Hills.
    
13. As well as supporting his immediate family he has also been supporting his wife’s extended family by providing living area on their Beverly Hill property.
    
14. With regards to this family property he continues to make monthly loan repayments of VT20,000. It respectfully submitted that any custodial sentence would cause great hardship to those who are dependent on George Dick.
    
15. He has through out the investigations and proceedings cooperated with the police as well as continue to respect the bail conditions.
    
16. As regards the facts of the case: the defendant has pleaded guilty to the offence. He admits the charge and says that sexual intercourse took place at the Beverly Hills home when the complainant was 13 years old then. This is reflected in the statement of Carolyn Joel (complainant’s natural mother) where she refers to the complainant’s first reporting of the incidents.
    

These are mitigating factors submitted on behalf of the defendant. The Court considers and takes all of them into account.

The following are aggravating factors:

• In 1998, the defendant started sexually molesting the victim at the age of eight (8) when she was in Grade 4. She was a young innocent child and became a victim of her own father’s sexual gratification.
  
• She was verbally and physically assaulted by the defendant namely:-

- the derogatory remarks about him owning her vagina;

- she belonged to him;

- he committed other undignified acts such as cunnilingus, fingering her vagina, and having to commit sexual intercourse.

• Sexual activity continued non-stop for a period of 6 years, until the matter was reported to her natural mother and police in late November 2003.
  
• The girl victim has lost her virginity at the hands of her adopting father.
  
• The father used force, intimidation and threats to satisfy his sexual lust on his child-girl.
  

A father has the obligation/duty to protect and care for his child. The facts of this case show that the defendant/father breached that fundamental obligation in the most terrible and damaging way. There will be no peace within the defendant’s household. The defendant is a chef at Melanesian Hotel. He knows better the importance of upholding the law which are neglected in his instructions to his counsel in mitigating pleas.

On the assessment and balance the principals are simple. Parents who use their children for their own sexual gratification will go to prison. It is almost impossible to imagine circumstances in which that will not be the necessary response. (PP v. Gratien Bae, Court of Appeal (C.A.), Criminal Case No. 3 of 2003).

The defendant, George Dick, cannot escape imprisonment penalty. The mitigating features cannot overweigh the aggravating factors in the present case.

A custodial sentence is necessary for a variety of reasons. Firstly, to mark the gravity of the offence. Secondly, to emphasize public disapproval. Thirdly, to serve as a warning to others. Fourthly, to punish the offender. Finally to protect the children and in this case the child girl.

I accept the prosecution submission that incest has become a common feature in the Republic of Vanuatu and is on the rise as confirmed by the reported indecencies of community disapproval given the fact that customary obligations have become the norm for solving such matters. This has become far too frequent and is becoming a real social problem within the family circle and one that is not in harmony with the principle of family. The custom ceremony is only relevant to any eventual sentencing proceedings after the offence is proven and for the offences of which the maximum penalty is 7 years imprisonment. This is what Section 119 of the Criminal Procedure Code [CAP. 136] contemplates. Custom ceremony to “clear and clean the faces” between the offender, the family of the victim and the chiefs have been performed. The effect of custom settlement is to bring social peace and order. It has come about to appease the natural parents and family members. The custom settlement is not a substitute for the criminal sanctions that go with the crime of Incest. The punishment for this type of offence is imprisonment for a period of ten (10) years, and as such reflects on the Republic and its people. [See PP v. Gideon Mael – CR. 18 of 1998].

In the present case, 7 years imprisonment is the appropriate sentence for this offence. The defendant pleaded guilty at the first opportunity presented to him. He was remorseful and apologized for his wrongdoing. This will be taken in the accused’s credit and represent one third of the appropriate sentence.

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

Dated at Port-Vila this 17^th day of March 2004

BY THE COURT

Vincent LUNABEK
Chief Justice