Public Prosecutor v Maliu [2005] VUSC 35; Criminal Case No 009 of 2005 (17 March 2005)

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

Criminal Case No. 9 of 2005

PUBLIC PROSECUTOR

VS.

DAVID MALIU

Coram: Mr Justice Oliver A. Saksak
Mrs Mandeng John – Clerk

Counsel: Mrs Linnes Moli for the Public Prosecutor
Mr Jacob Kausiama for the Defendant

Date of Plea and Sentence: 17th March 2005

SENTENCE

The defendant has pleaded guilty to one count of rape contrary to section 91 of the Penal Code Act [CAP. 135].

Parliament has placed the maximum penalty for rape offences at life imprisonment to mark the seriousness of the offence.

In sentencing the defendant I have had the opportunity of seeing the cases of Public Prosecutor v. August Ali, [2000] VUSC 73; Criminal Case No. 14 of 2000 as endorsed by the Court of Appeal in the Maslea Scott and Tula Jeremiah Case, [2002] VUCA 20; Criminal Appeal Case No. 2 of 2002. I follow the guidelines and sentencing principles in those cases.

The starting point for a rape offence by a single offender is 5 years imprisonment where there are aggravating factors in this case.

However there are mitigating factors which the Court takes into account as follows –

(a) a guilty plea at the first opportunity
(b) defendant being a first offender
(c) defendant co-operated with police
(d) defendant’s remorse
(e) the victim behaving in a manner calculated to lead the defendant to believe that she was consenting to sex.

Considering those mitigating factors in the absence of aggravating factors, it is my view that the appropriate term of imprisonment for this defendant is 4 years. However 1/3 of it is deducted being in respect of his guilty. Considering the other mitigating factors, the Court is of the view that the appropriate sentence of imprisonment for the defendant is 2 years.

Any period he has taken in custody awaiting plea should be deducted accordingly.

DATED at Luganville this 17^th day of March, 2005.

BY THE COURT

OLIVER A. SAKSAK
Judge