Public Prosecutor v Frank [2005] VUSC 116; CRC 043 2005 (4 October 2005)

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

SC No. 43 of 2004

PUBLIC PROSECUTOR

VS.

BEN FRANK

Coram: Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Mr Lent Tevi for the Public Prosecutor
Mr Hillary Toa, Public Solicitor for the Defendant.

SENTENCE

You were initially charged with 8 counts of sexual offences. However the Prosecutor informed the Court that he would withdraw counts 6, 7, and 8. Accordingly those were withdrawn. The remaining 5 counts were:-

Count 1 – Unlawful Sexual Intercourse – Section 97(1) Penal Code Act CAP. 135.

Count 2 – Unlawful Sexual Intercourse – Section 97(1) PCA.

Count 3 – Unlawful Sexual Intercourse – Section 97(2) PCA.

Count 4 – Indecent Act in Public Place – Section 94(1) PCA.

Count 5 – Unlawful Sexual Intercourse – Section 97(2) PCA.

You pleaded “Not-Guilty” to counts 1 and 4 and “Guilty” to counts 2, 3 and 5. The Prosecutor chose not to pursue counts 1 and 4 and accordingly those were also withdrawn against you.

Count 2 related to sexual intercourse with Jenny Ross in 2003 when she was 12 years old. You repeated your action on her in 2004 when she was 13 years old. Count 3 relates to that offence. Then between 2003 and 2004 you had sexual intercourse with Joyce Dick when she was only 13 years old. Count 5 relates to that offence.

You are a mature and married man with 4 children. You repeated having unlawful sexual intercourse on Jenny Ross. And you further repeated the same act on Joyce Dick. Those are the aggravating factors which make your case serious.

In assessing your punishment I take into account to mitigate sentence the following factors:-

1. The customary ceremony and fine of VT63,000.
2. That you are extremely remorseful and have had a reconciliation ceremony.
3. That you have promised not to repeat these actions.
   

I will allow discount of 1/3 for these. I consider that the appropriate penalty to impose for all three counts is a term of imprisonment of 5 years. However allowing for a discount of 1/3, the 5 years is reduced by some 20 months to 40 months which is 3 years and 4 months. This term of imprisonment will commence on 31^st August 2005 when you were first remanded in custody.

DATED at Luganville this 4^th day of October, 2005.

BY THE COURT

OLIVER A. SAKSAK

Judge