Public Prosecutor v John [2005] VUSC 76; Criminal Case No 032 of 2005 (10 June 2005)

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

Criminal Case No. 32 of 2005

PUBLIC PROSECUTOR

–v-

MORRISON JOHN

Coram: Justice Treston

Mr. Kalmet for Public Prosecutor
Mr. Kausiama for Defendant

Date of Hearing: 10 June 2005
Date of Sentence: 10 June 2005

SENTENCE

Mr. Morrison John, you are today appearing for sentence on a charge of unlawful sexual intercourse. Because the age of the victim, the potential sentence is 5 years imprisonment. It was in February of this year when the victim was aged 13 years that you had sexual intercourse with her, it was about 8 or 9pm when you took her by the hand and pulled here to a garden near the road. You used some force to undress her, pushed her to the ground and had intercourse with her. She suffered pain because it was the first time she had had sexual intercourse with a man. It was in the following April that another Defendant, Samuel Jimmy, also had sexual intercourse with the same victim and it was after that that the matter was reported to the police. You admitted your actions.

The Prosecutor submits that you should receive a custodial sentence for this incident and that the starting point of such sentence should be two years. He accepts as he did in the Jimmy Case that there should be some reduction in the sentence for your plea of guilty and for the time you have spent in custody.

Your counsel submits to me that as an 18 year old man, you are a first time offender with previously good character. You have pleaded guilty at the first available opportunity and cooperated with the police in their investigation. You apologize to the Court and to the victim for what has happened.

The Court must take into account, the accountability that you have for the harm done not only to the victim but also to the community. I must denounce your conduct and deter you and others from offending again in this way. I must protect not only the victim but also the community at large from such excesses. It is unfortunate that there have been two offences against this same victim who has really just been treated like a chattel.

Sentencing by the Court must involve considering a balance between aggravating and mitigating factors. The aggravating features here includes the young age of the victim and her vulnerability because of that. In your case I must take into account the force that you used against the victim in obtaining sexual intercourse with her. In the case of Public Prosecutor v Gideon [2002] VUCA 7; Criminal Appeal Case no. 3 of 2001, the Court of Appeal said that it would only be in the most extreme of cases that suspension could ever be contemplated in a case of sexual abuse. The Court went on to say that men, and you at 18 years of age are a young man, must learn that they cannot obtain sexual gratification at the expense of the vulnerable. I heard from the victim earlier this week, that she has suffered effects by feeling shame within her family group because of what happened and of course it is not a defence to a charge under this section that the girl consented or the person charged believed that she was of or over the age in question. You were lucky that the Prosecution regarded the two charges that you faced as alternatives because you could very well have been facing a much more serious sentence for a charge of rape.

There are mitigating factors to be balanced against those aggravating ones. There is the fact that you are relatively young at 18 years of age but clearly you used your greater strength and older age to overbear the victim. Next, of course, is the fact that you pleaded guilty which avoids the ordeal for the victim having to give evidence in Court. In addition, your plea of guilty can be a demonstration of your remorse and contrition. I accept you cooperated with the police during the investigation and that you have now apologize to the Court and the victim for what has happened.

I agree with what the Prosecutor says about a starting point of two years for this offending and that has even more weight because it would be very difficult to differentiate between you and Mr. Samuel Jimmy in relation to your offending which bears remarkable similarity one to the other. I immediately take into account and give you credit for your plea of guilty and the other mitigating factors in reducing the starting point to sentence by one-third. In addition, I give you a credit for a further three weeks for the time that you were in custody. Consequently I today impose a sentence of 15 months and one week imprisonment.

You have 14 days in which to appeal that sentence.

Dated AT PORT VILA, this 10th day of June 2005

BY THE COURT

P.I. TRESTON
Judge