Public Prosecutor v Tasso [2005] VUSC 12; Criminal Case 002 of 2005 (11 March 2005)

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

CRIMINAL CASE No. 02 of 2005

PUBLIC PROSECUTOR

-v-

ROGER TASSO & JOHN SELWYN

Coram: Chief Justice Vincent Lunabek

Counsel: Mr. Lent Tevi for the Prosecution
Mr. Jacob Kausima for the Defendant

SENTENCE

This is the sentence of the defendants Roger Tasso and John Selwyn. The Defendant Roger Tasso was charged with the offence of Rape, Contrary to Section 91 of the Penal Code Act [CAP. 135] and Unlawful Sexual Intercourse with child under care or protection, contrary to section 96(1) of the Penal Code Act [CAP. 135].

The Defendant John Selwyn was charged with the offence of Unlawful Sexual Intercourse, contrary to section 97(1) of the Penal Code Act [CAP. 135].

Both Defendants made confessional statement to the Police during their interview at the Police station and pleaded guilty as charged.

Section 90 of the Penal Code Act [CAP. 135] defines rape in the following terms:

“90. Any person who has sexual intercourse with another person:

1. Without that person’s consent; or
2. With that person’s consent if the consent is obtained:
   
   • (i) By force; or
   • (ii) By means of threats of intimidation of any kind; or
   • (iii) By fear of bodily harm; or
   • (iv) By means of false representation as to the nature of the act; or
   • (v) In the case of a married person, by impersonating that persons’ husband or wife
     

commits the offence of rape. The offence is complete upon penetration.”

Section 91 stated that:

"No person shall commit rape

Maximum Penalty: Imprisonment for life.”

Section 96(1):

“1. A person must not have or attempt to have sexual intercourse with any child, not being the person’s spouse, who is under the age of 18 years and who:

(a) Being the persons stepchild or foster child, is at the time of the intercourse or attempted intercourse living with the person as a member of the person’s family

Maximum Penalty: Imprisonment for 10 years.”

Section 97(1):

“No person shall have sexual intercourse with any child under the age of 13 years old – Penalty: Imprisonment for 5 years.”

Both Defendants are charged with serious sexual offences.

The brief facts are as follows:

ROGER TASSO

• The Defendant Roger Tasso is 40 years old and lives in a de-facto relationship with Ms Rachel Roger, the mother of the girl complainant.
  
• The Defendant at the time of the offence was unemployed.
  
• The Victim is a daughter of Ms Rachel Roger with another man but has been looked after by the defendant for more than 7 years. The Victim is the stepdaughter of the Defendant and was 11 years old at the time of the offence.
  
• On or about August 2003, the victim’s mother went on a Church tour to Tongoa. The victim and her two sisters, her two brothers were at home (Anamburu) with their father who is the Defendant.
  
• On or about August 2003, the defendant went to have some kava. The Victim and the other children were at home. There were three bedrooms in and one belongs to the Defendant and his defacto wife. The Victim was sleeping on the other bedroom and her younger brothers and sister were sleeping with the Defendant.
  
• On that particular night while the Defendant was away drinking Kava, the youngest son woke up in the night and cried so the victim left her bedroom by her grandmother’s instruction and went to accompany him and to make him sleep.
  
• While sleeping with her little brother, she heard a knock on the door, which she went and open the door and saw her father. She returns to her room however she found that her door was lock up so she went to sleep with her younger brothers and sisters.
  
• While sleeping, she feels that the defendant went and hold her tightly to the bed. She woke up and saw the defendant’s trousers half way down his legs. She could not move nor touch her brother because the defendant was holding her tightly.
  
• The Defendant took off the Victims clothes, trousers and panty and slept on top of her. The defendant then spread the victim’s leg and tries hard to penetrate her.
  
• After some times the Defendant penetrated the Victim. The Victim felt so much pain in her vagina because she never hard sexual intercourse before.
  
• After sexual intercourse, the defendant got up wore his clothes and did not say anything to the Victim. The Victim saw little blood. She then went back to her room, which she usually sleeps.
  
• The Defendant admits having sexual intercourse with the Defendant and cooperates well with the Police.
  

JOHN SELWYN

• The Defendant, John Selwyn is 24 years old.
  
• His family and the Victim’s family are family friends.
  
• He has personal relationship with the victim during the time of the offence.
  
• On or about the 4^th of January 2005, the victim went to John Selwyn’s brother’s house to look after his baby.
  
• On or about 4^th of January 2005 at 7 o’clock pm John SElwyn asked the victim to drop her off at her home. While walking along the road the he invited the victim into the bushy area to tell story and then have sexual intercourse.
  
• The victim refuses, however he insisted further and the victim accepted to have sex with him.
  
• The victim took of her clothes except for her t-shirt. The defendant asked her to lie down on the ground, which he laid on top of her and penetrated her. The defendant struggled to push or penetrated her and then after a while he penetrated into the vagina of the girl complainant.
  
• The victim felt so much pain during the sexual intercourse.
  
• The Defendant admits having sexual intercourse with the Defendant and cooperates well with the Police.
  

Both of the Defendants are contrite and very remorseful for their offending. The Defendants were cooperative with the police and entered a guilty plea at the first instance to spare this young victim of giving evidence before the Court. This will be taken into account in their sentencing. Both Defendants are first time offenders and has no previous convictions.

It must always be understood that the maximum penalty imposed by the Criminal law for the offence of rape is life imprisonment. The Prosecution submitted that the guideline judgment is set down by Public Prosecutor v Ali August, [2000] VUSC 72 Criminal Case No. 14 of 2000 which was endorsed and confirmed by the Court of Appeal in the Public Prosecutor v Maslea Scott and Jeremiah Tula, [2002] VUCA 29 Criminal Case No. 2 of 2002.

Moreover the following statement made by the Court of Appeal in Public Prosecutor v Gideon [2002] VUCA 7 remains the principle authority in sexual offences:

“Men must learn that they cannot obtain sexual gratification at the expense of the weak and the vulnerable. What occurred is a tragedy for all involved men who take advantage sexually of young people forfeit the right to remain in the community.”

In relations to unlawful sexual intercourse with child under care the Prosecution submits and relies on the case of Peter Talivo v Public Prosecutor, [1996] VUCA 2 [Criminal Appeal Case No. 02 of 1996] in which the Court confirmed and reaffirmed the following:

“All children are entitled to be protected by adults. Children must be safe in their own homes. When men who have the care of children abuse that trust we agree with the Chief Justice that they forfeit the right to remain within the community. In this case the custom dealing with the matter could not in and of itself be sufficient to deal with it.... The Court had an obligation to mark the community disapproval of it in a serious way”

The Prosecution relies further on the Court of Appeal Judgement in PP v Gideon, Criminal Appeal Case No. 3 of 2001 and the following aggravating features were outlined:

1. The age of the victim;
   
2. Uses of Force to commit rape;
   
3. Rape carefully planned;
   

In this case, the facts and surrounding circumstances in respect to the two (2) Defendants call for immediate custodial sentence. The custodial sentence is necessary for a variety of reasons:-

• First, to mark the gravity of the offence
  
• Second, to emphasize and mark public disapproval
  
• Third, to serve as a warning to others
  
• Fourth, to punish the offender
  
• The last but not the least is to protect the women and girls
  

The Sentence of each of the Defendants-

Sentence of Roger Tasso

The Defendant, Roger Tasso admits having sexual intercourse with the victim and cooperated well with the Police. He is contrite and very remorseful for his offending. He was cooperative with the police and entered a guilty plea at the first opportunity to spare this young victim of giving evidence before the Court. This is taken into account in his sentencing.

After proper deduction for guilty plea and time spent in custody, the Defendant, Roger Tasso, is sentenced as follows:

• Rape : 6 years imprisonment.
• Unlawful Sexual Intercourse: 4 years imprisonment.
  

Both terms of sentence to be served concurrently. I am considering to suspend the sentence but I decline in the circumstances of this case.

The Defendant is to serve 6 years imprisonment with immediate effect.

John Selwyn

The Defendant, John Selwyn is 24 years of age. At the time of offending, he was in a special relationship of boy/girl friend relationships with the girl complainant. There is no use of force. The girl after some insistence by the Defendant John Selwyn, accepted to have sex with him. The girl removed herself her clothes save her T-shirt before sex occurred. I consider the circumstance of this case and I sentence the Defendant, John Selwyn to 2 years imprisonment and suspend it for a period of 2 years.

14 days for each and both Defendants to appeal.

DATED at Port-Vila-Vila this 11^th day of March 2005

BY THE COURT

Vincent LUNABEK
Chief Justice