Public Prosecutor v Kasso [2008] VUSC 33; Criminal Case 97 of 2007 (3 April 2008)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Held at Isangel, Tanna)

CRIMINAL CASE No.97 OF 2007

PUBLIC PROSECUTOR

-v-

MOSES KASSO

Mr Bernard Standish for Public Prosecutor
Mr Jacob Kausiama for the Defendant

SENTENCE

This is the sentence of the defendant, Moses Kasso. Mr Moses, you are charged with 2 counts of Sexual Intercourse without consent, Contrary to Section 91 of the Penal Code Amendment Act No.25 of 2006.

You pleaded guilty to both counts of sexual Intercourse without consent, on 2nd April 2008.

The facts are as follows:

In late September 2007 and in early October 2007, Moses Kasso you committed offences of sexual intercourse without consent against your wife Sylvie Nausien ("the complainant").

There had been some problems between you and your wife which lead to a meeting with the chiefs of the village.

On Saturday 29th September 2007, your wife went to sleep. You came into the house. You had a white four cell torch.

You placed the torch into your wife’s vagina. This caused her pain and she felt hemi "sore tumas". The complainant told you that if you didn’t want to be with her, you should let her go and live with her family.

On Tuesday 2nd October 2007, you and complainant wife woke up in the morning. You started to hit the complainant with a piece of wood. The wood broke into two parts. You held onto one part and placed it inside the complainant’s vagina. After you did this, you had sex with her by putting your penis inside her vagina.

The complainant ran away to look for her father. The chiefs became involved and they spoke with you. You promised that you would not assault the complainant again. However, on 5th October 2007 and on 23rd October 2007, you did assault her again.

The complainant fell pregnant to you. The complainant became concerned about her unborn baby’s health. She already has four pikinini and she was worried that if you assaulted her, or put foreign objects inside her vagina, the baby could be killed dead.

The matter was reported and the police spoke with you. You admitted the allegations that had been made. You stated:

"I tru mi bin pusum four (4) cell torch i go long tabu part (vagina) blong hem"

"Mi bin pusum piece wood we mi killim hem wetem mo i broke mo half ia nao mi bin pusum long Tabu Part (Vagina) blong hem too".

The definition of sexual intercourse in its Penal Code includes:

« Section 89A (b) the penetration, to any extent, of the vagina .... of a person by an object».

The prosecution relies on the guideline judgment of the Court of Appeal in Maslea Scott and Jeremiah Tula, Criminal Appeal Case No.02 of 2002.

In this case, the prosecution submits that there are aggravating features:

• First is the offence is repeated.
• Second, a weapon was used. A piece of wood was used to bit the complainant wife and then it was inserted into the wife’s vagina.
• There is some degree of perversion the defendant is supposed to love his wife who gives birth to his children.
  

The prosecution concedes by way of mitigation that:

You pleaded guilty on the first opportunity given to you. This has an effect of saving the Community from the costs of a trial. It may indicate a sorry.

There has been a degree of peace restore between you and your wife.

Your Counsel told the Court you came from Ive village. You married with the complainant. You have 4 children with her. Your wife is now pregnant with another child. You are a gardener doing garden for subsistence. You pleaded guilty on both Counts which is a sign of remorse. You are a first time offender.

Your wife went with another man. You felt hatred. You were enflaming by anger and jealousy. You loss control and commit the offence.

You made custom settlement to your complainant wife by paying a fine of 1 buluk, 2 pigs and 10,000 vatu cash.

You realize you were wrong: you realize you offend against the law. You had a previous good character. Your Counsel asked that the Court imposes a current sentence on both counts.

Both offences are very serious offences. Section 89A defines sexual Intercourse as follows:

"SEXUAL INTERCOURSE DEFINED

89A. For the purposes of this part sexual intercourse means of the following activities, between any male upon a female, any male upon a male, any female upon a female or any female upon a male:

(a) the penetration, to any extent, of the vagina or anus of a person by any part of the body of another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorized by law; or

(b) the penetration, to any extent, of the vagina or anus of a person by an object, being penetration carried out be another person, except if that penetration is carried for a proper medical purpose or is otherwise authorized by law; or

(c) the introduction of any part of the penis of a person into the mouth of another person; or

(d) the licking, sucking or kissing, to any extent, of the vulva, vagina, penis or anus of a person; or

(e) the continuation of sexual intercourse as defined in paragraph (a), (b), (c) or (d); or

(f) the causing, or permitting, of a person to perform any of the activities defined in paragraph (a), (b), (c) or (d) upon the body of another person."

Section 89(b) is the relevant subsection for the purpose of this case.

1. Sexual Intercourse without Consent is defined under Section 90 of the Penal Code as follows:

"SEXUAL INTERCOURSE WITHOUT CONSENT

90. Any person who has sexual intercourse with another person:

(a) without that person’s consent; or

(b) with that person’s consent if the consent is obtained:

(i) by force; or

(ii) by means of threats of intimidation of any kind; or

(iii) by fear of bodily harm; or

(iv) by means of false representations as to the nature of the act; or

(v) in the case of a married person, by impersonating that person’s husband or wife; or

(vi) by the effects of alcohol or drugs; or

(vii) because of the physical or mental incapacity of that person.

commits the offence of sexual intercourse without consent."

2. Section 91 of the Penal Code Act is the offending section. It provides:

"PUNISHMENT OF SEXUAL INTERCOURSE WITHOUT CONSENT

91. No person shall commit sexual intercourse without consent

Penalty: Imprisonment for life."

I apply the guideline judgment of the Court of Appeal in Scott and Tula in Criminal Appeal Case No.02 of 2002.

The starting point is 5 years. There are 3 aggravating factors:

First, the offence has been repeated;

Second, a piece of wood which has been used to bit the complainant wife was introduced into the complainant’s vagina.

Third, there is some degree of perversion.

I increase the sentence to 8 years to reflect the aggravating features.

I take into account all that your Counsel told the Court on your behalf. I make proper deduction of the total sentence made for your guilty plea at the first opportunity offered to you; the fact that you are a first time offender and there has been a degree of peace restored between you.

After proper deduction I sentence you to 6 years imprisonment to be served concurrently on both counts with immediate effect.

You have 14 days to appeal.

DATED at Isangel, Tanna this 3rd day of April 2008

BY THE COURT

Vincent LUNABEK
Chief Justice