Public Prosecutor v Niurie [2007] VUSC 88; Criminal Case 68 of 2006 (12 September 2007)

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

Criminal Case No. 68 of 2006

PUBLIC PROSECUTOR

-v-

JAMES NIURIE

SENTENCE

1. This is the sentence of James Niurie.
   
2. Mr. Niurie, you have been charged with the offence of incest contrary to section 95 (1) (a) of the Penal Code Act [CAP. 135]. Such offending attracts a maximum term of 10 years imprisonment.
   
3. You have pleaded guilty to the offence and as such you stand convicted in this Court.
   
4. In sentencing you today I need to consider the circumstances of the offending, the law, any aggravating and mitigating factors to reach a sentence that, in my view, is the appropriate sentence in the circumstances of your case.
   
5. You are a man of 59 years old and a father. The victim was 14 years old at the time of offending. She is your daughter. You and your wife adopted her when she was a baby.
   
6. You started having sexual intercourse with her when she was in year 6 in 2004. The sexual offending continued up to 2006. Whenever, she refused your advances you would beat her into submission. On 22 September 2006 she again refused to have sex with you. In retaliation you slapped her on her head. She then ran away and spent the night with a neighbor who welcomed her to stay the night. She was afraid to return as she feared being beaten again.
   
7. The charge you pleaded guilty to reads:-
   

“Incest – agensem section 95 (1) (a) Penal Code Act [CAP. 135]. James Niurie, samtaem long namba 2004 ko kasem 22 September 2006 long Eruety mo long Snake Hill area, you bin stap havem sexual intercourse wetem adoptive gel blong you ..., wei long ol taem ia hemi bin stap anda long care or protection blong yu.”

8. Evidence by the victim in her statement to the Police show that the sexual offending began sometime in 2004 and ended on or about 22 September, 2006. On that date you had sex with the victim in the morning and about lunch time. Your third attempt in the evening to have sex with her again caused her to run away from home and eventually to report the matter to the Police.
   
9. The aggravating features, in my view, are as follows:-
   
   • (a) You forced her to have sexual intercourse with you. You assaulted her in order to allow you to have your pleasure with her against her free will.
     
   • (b) The sexual offending was repeated over a period of approximately 2 years.
     
   • (c) Serious breach of trust between you as the father and the victim as your daughter. Implicit in a relationship of father and daughter is trust. In whatever situation, she can call on you, rely on you as the father to do the right thing for her. You have completely destroyed that trust. You have destroyed that special bond that exists between you and her.
     
10. In sentencing you today, your counsel has urged me to take into account mitigating factors in your favour. You are a first time offender. That you are sorry for what you did and that you did say sorry to the victim when she visited you in custody and that you pleaded guilty at the first opportunity. In doing so, you have saved the Court time and expense and the victim the ordeal of having to relive those painful and difficult times in Court and before others.
    
11. The offence you have committed is a very serious offence indeed. You have taken advantage of a child of tender years who calls you father and violated her in the most cruel way both physically and mentally. We will never know the extent of the damage you have caused her. In sentencing you today, I apply the principles laid down in PP v. Bae and PP v. Gideon. That principle is simple. “Parents who use their children for their own sexual gratification will go to prison. It is almost impossible to imagine circumstances in which that will not be the necessary response.” I fully agree with that. The circumstances of your case clearly shows that you have used you own daughter for your selfish sexual gratification for a period of approximately 2 years. You have betrayed your own daughter.
    
12. When I sentence you Mr. Niurie, I take into account that I must hold you accountable for the harm done not only to the victim but also to your family and the community. You must be held responsible and I must denounce your conduct and deter you and other like minded offenders, and there are all too many facing this sort of offence. The Court needs to protect not only the victim, your daughter, but also the community generally and other young girls who are abused also in this way.
    
13. The circumstances of your offending warrants an immediate custodial sentence. I take into account your guilty plea, the fact that you are a first time offender and the other mitigating features (no custom reconciliation has been performed) and your time in custody but due to the continuing nature of your offending, it is my view that, the starting point should be 6 years imprisonment. You have been in custody since 29 September 2006. That time is deducted. I take into account all the mitigating factors and sentence you to 4 years imprisonment.
    
14. You have 14 days to appeal that sentence if you are dissatisfied with it.
    

DATED at Port Vila, this 12th day of September, 2007.

H. BULU
Judge.