Public Prosecutor v Boe [2005] VUSC 38; Criminal Case No 010 of 2005 (18 March 2005)

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

Criminal Case No. 10 of 2005
SC No. 1 of 2005

PUBLIC PROSECUTOR

VS.

TENNISON BOE HANGO
JOHN TARI WERE

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

Counsel: Mrs Linnes Moli for the Public Prosecutor
Mr Peter Bartels fort he Defendants

Date of Plea: 15^th March 2005
Date of Sentence: 18^th March 2005

SENTENCE

Tennison Boe Hango and John Tari Were, you both pleaded guilty to very serious criminal sexual offences of rape contrary to section 91 and of unlawful sexual intercourse contrary to section 97(1) of the Penal Code Act [CAP. 135]. Initially you both were charged also with one count each of indecent assault. However those were withdrawn by the prosecution.

The offence of rape carries a maximum of life imprisonment and the offence of unlawful sexual intercourse carries a maximum of 14 years under section 97(1), that is with a child under 13 years of age.

The girl on whom both of you took advantage by your ages of maturity and the degree of home-brewed alcohol that you both consumed and were under the influence of at the time, is only 12 years old.

The aggravating factors of this case are –

(a) Both of you are mature men.
(b) Tennison you forced yourself on the girl 2 times.
(c) John Tari you performed an act of perversion on her.
(d) The girl is young at 12 years of age.
(e) You both caused physical damage to her body.
(f) Being a school girl you both have caused her mental and emotional damage.
(g) You both used some degree of force on her.
(h) The incident occurred at night at an isolated place putting the girl’s life at risk or danger if she did not submit to your sexual demands or lusts.
(i) Both of you being much older than her had some degree of trust and responsibility towards her instead, you both abused her.

Those factors far outweigh the mitigating factors which are –

(a) That both of you pleaded guilty on 15^th March.
(b) That there has been a custom ceremony performed.
(c) That both of you have been remorseful.
(d) That both of you are first-time offenders.

In sentencing you both today, I follow the sentencing guidelines and principles set out in the cases of Public Prosecutor v. Ali August Criminal Case No. 14 of 2000 as endorsed by the Court of Appeal in Maslea Scott and Jeremiah Tula, [2002] VUCA 20; Criminal Appeal Case No. 2 of 2002; and Public Prosecutor v. Kevin Gideon [2002] VUCA 7; Criminal Appeal Case No. 3 of 2001.

Now for the offence of rape the starting point is 8 years imprisonment. Your case is so serious that I must adopt and apply those 8 years for both of you Tennison and John. However because of the fact that you both pleaded guilty at the first opportunity, 1/3 is deducted from 8 years which reduces it to 6 years and 10 months. Allowing for the customary settlement and the other mitigating factors instead of allowing a further 1/3 as submitted by Counsel, the Court will reduce the sentence further by 10 months. That leaves the balance of 6 years imprisonment for both you Tennison and John.

The reasons for imposing such high sentence are –

(a) To mark the gravity of this offence in the light of it being on the increase.
(b) To emphasize public disapproval.
(c) To serve as a deterrence and warning to you and to others.
(d) To punish both of you adequately.
(e) To protect the weaker members of the society i.e. women, girls and children.

For the offence of unlawful sexual intercourse the starting point is 6 years according to the Public Prosecutor v. Kevin Gideon Case. Again due to the serious nature of the case the Court must adopt the 6 years imprisonment for both of you. However 1/3 of that period or sentence are discounted in view of your early guilty pleas. That means that each of you must serve 4 years in prison for this offence. There will be no further discount.

It is the view of the Court that the sentences of 6 years and 4 years should be served concurrently. That means that each of you will serve only a total of 6 years imprisonment. The period you both have taken in custody will be deducted accordingly. A warrant of commitment will issue for your immediate imprisonment.

DATED at Luganville this 18^th day of March 2005.

BY THE COURT

OLIVER A. SAKSAK
Judge.