Public Prosecutor v Jimmy [2005] VUSC 73; Criminal Case No 031 of 2005 (8 June 2005)

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

Criminal Case No. 31 of 2005

PUBLIC PROSECUTOR

–v-

SAMUEL JIMMY

Coram: Justice P I Treston

Mr. Kalmet for Prosecution
Mr. Kausiama for Accused

Date of Sentencing: 08 June 2005

SENTENCE

Mr. Samuel Jimmy you today appear for sentence on a charge of Unlawful Sexual Intercourse. Because of the age of the victim, the maximum potential sentence is 5 years imprisonment. This happened on 9 April 2005 when the victim was thirteen and half years old at that stage. You were sixteen at the time. That meant that there was a two and a half year age difference between you at the time of the offence. On the night of the offence, she and one of her relatives had gone to the road market in the Ohlen area, where she met you and some of your friends. You tried to get her to go out with you but she refused, you persisted in your overtures and seized her hand and took her into your house. There you asked her to take off her clothes off but she refused. You pulled her pants down and she pulled them up, you keep persisting until she took her pants off. You pushed her to your bed and had intercourse with her.

The Public Prosecutor submits to me that the appropriate sentence would be a starting point of two years imprisonment in accordance with the authorities which he presented to me. He accepts that there should be some reduction in the sentence for your plea of guilty and that would effectively reduce a sentence to sixteen months imprisonment.

Your counsel seeks to persuade me that because of certain matters of mitigation, the sentence should be twelve months imprisonment. The reasons why your lawyer says that are because you are only seventeen years of age and, although you have other convictions, there are none for sexual matters. You have pleaded guilty at the first opportunity and cooperated with the police at the time. In addition, it is submitted to me that you apologize to the Court and to the victim for what has happened and that it would be risky for a person of your age of seventeen years to go to jail along with more experienced and perhaps dangerous prisoners.

In sentencing, the Court must take into account the accountability that you have for harm done to the victim and to the community. The Court must provide for the victim's interests and must denounce your conduct. There must be elements of deterrence to prevent you from offending again and other likeminded offenders must also be deterred from offending in this way. The Court must protect not only the victim but also the community at large.

Sentencing like this generally involves considering a balance of aggravating and mitigating factors. The aggravating features of course include the young age of the victim and her vulnerability because of that. The Court must also take into account any previous convictions which you have and although there are none for sexual offending, you have six previous convictions for theft and one for malicious damage that would not be of particular significance had you not been sentenced only in February of this year to six months imprisonment suspended for twelve months. That was on the condition that you did not re-offend for twelve months and as you have re-offended, you will now have to serve your six months suspended imprisonment. That suspended sentence effectively precludes me from suspending any sentence in relation to this matter and in any event it would be unlikely that I ought to do so because the Court of Appeal in the Public Prosecutor v Gideon Criminal Appeal Case No. 3 of 2001; [2002] VUCA 7 said that it would only be in the most extreme of cases that suspension could ever be contemplated in a case of sexual abuse. While this is not strictly sexual abuse it is sexual offending that falls within the same category because as Gideon's case has said men, and you are a young man, must learn that they cannot obtain sexual gratification at the expense of the vulnerable. Another aggravating feature is the fact that the victim has told me personally in Court that the offending has caused her shame within her family group and as the Prosecutor has said it is no defence to a charge under this section that the girl consented or that the person charged believe that she was of or over the age in question.

There are of course mitigating factors to be balanced against the aggravating ones. There is your age and you are not particularly old being sixteen at the time of the offending and now seventeen years. Next is your plea of guilty which as your lawyer has said saves the victim from having to come to Court and tell strangers about the ordeal she went through. Such a plea of course can be a demonstration of your remorse and contrition. In addition, I accept that you cooperated with the police during the investigation and that you have apologize to the Court and the victim for what has happened. I do not place much weight on the effect of you mixing with older prisoners because you placed yourself in that position by offending again while you were subject to a suspended sentence.

I adopt a lower starting point for you in your particular circumstances and I agree that the Prosecutor's starting point is realistic. I adopt then the starting point of 2 years imprisonment for this offence, that is reduced by one-third to recognize and take into account not only your plea of guilty but also the other mitigating factors.

I also take into account the fact that you were in custody for 2 weeks and note that the final sentence I today impose is 15 months 2 weeks imprisonment.

You have 14 days to appeal that sentence.

Dated AT PORT VILA, this 08th day of June 2005

BY THE COURT

P. I. TRESTON
Judge