Public Prosecutor v Tahi [2006] VUSC 11; CRC 070 2005 (9 February 2006)

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

Criminal Case No. 70 of 2005

PUBLIC PROSECUTOR

V.

SITO TAHI

Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Ms Kayleen Tavoa – Public Prosecutor, prosecuting
Mr Hillary Toa – Public Solicitor, defending

SENTENCE

Sito Tahi, a minor of 15 years pleads guilty to one count of indecent assault contrary to section 98(1) of the Penal Code Act CAP. 135.

A conviction is entered against him accordingly. However the Public Prosecutor refers the Court to section 38 of the Act which state:-

“(1) No person under the age of 16 years of age shall be sentenced to imprisonment unless no other method of punishment is appropriate. Where any such person is sentenced to imprisonment, the Court shall give its reasons for so sentencing.

(2) An offender under the age of 16 years shall serve a sentence of imprisonment in a special establishment or, if no such establishment exists, shall be separated from offenders of 16 years of age and over.”

The Public Solicitor also refers that section to the Court for consideration in deciding sentence. Other circumstances of the defendant have been addressed by Mr Toa. Deep remorse has been expressed and a customary settlement has been arranged and performed. The second ceremony is yet to be performed. The boy is illiterate and appears to be suffering from lack of proper parental guidance and love. The Court has heard that he is learning driving lessons and has future intentions of becoming a mechanic. He cooperated with the police on investigation of the complaint.

I have considered these circumstances and take them into account in the sentence to be imposed. The Court is placed in a very difficult position in this kind of case involving minors. There are no separate facilities or establishments for minors. And there are no probation schemes in place after these many years. It is not for this Court to invent probation schemes.

Under those circumstances I consider that the only course open for the Court is to warn this young offender in the strongest term that he must not repeat his actions whether on this victim or any other girl or woman, as he may not receive the same treatment that he is getting today.

I therefore consider that the most appropriate thing for the Court to do is to convict the accused but have his discharged under section 43(4) of the Penal Code Act which states:

“(4) Nothing in this section shall affect the power of any Court to convict and discharge any person.”

Accordingly I convict the defendant but have him discharged.

DATED at Luganville this 9^th day of February, 2006.

BY THE COURT

OLIVER A. SAKSAK

Judge