Public Prosecutor v Macreveth [2008] VUSC 4; Criminal Case 105 of 2007 (28 February 2008)

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

Criminal Case No. 105 of 2007

PUBLIC PROSECUTOR

-V-

JOHNNY MACREVETH

Coram: Justice C. N TUOHY

Date of Hearing: 28th February 2008
Date of Decision: 28th February 2008

Counsels: Mr. Alain F. Obed for Prosecution
Mr. Toa for Defendant

SENTENCE

1. Johnny Macreveth has been convicted of two charges of unlawful sexual intercourse with a girl aged under 15 but of or over 13 years of age under section 97 (2) of the Penal Code Act. That charge carries a maximum penalty of imprisonment for five years. The law is that there is no defence to a charge under the section that a child consented to the sexual intercourse. The purpose of the law is to protect children.
   
2. The facts of this case are a little unusual. The Defendant is now aged about 25. He formed a relationship with the victim in 2006. That relationship was an intense one which led to sexual intercourse in May and August 2007 which is the subject of the charges.
   
3. At that time the girl involved was aged 13 ½, she is now 14. The relationship between the Defendant and the girl still continues and I am told that they are living together now. She is pregnant with his child. He cares for her and supports her. She wants very strongly to continue the relationship and at no time did she ever make a complaint. The complaint was made by the girl’s parents who at this time have indicated they wish now that they had not made a complaint.
   
4. However, they do not want their daughter to be involved in a sexual relationship until she is 16 or 17. In fact it appears that the law in Vanuatu is that the age of consent is 15 because this charge relates to children under the age of 15. She will turn 15 on the 8th December 2008.
   
5. I have had the benefit of some very good submissions from the prosecution in this case for which I thank them and also an excellent pre-sentence report from the probation officer which has been a big help to the Court in deciding how to deal with this difficult case.
   
6. The probation report indicates that the Defendant, Mr. Macreveth, is a person with some ability and prospects in life. He has already got a certificate in electrics from the Vanuatu Institute of Technology. In spite being the youngest child of 8 children whose parents have already now passed away, not only has he got that good qualification, he has a full time job as an electrician for a construction company in Vila. He is to be commended for the success he has had so far in life which exceeds that of many of the young men of Vanuatu.
   
7. The pre-sentence report makes it clear that he really cares for the girl. He not only looks after her and cares for her, he paid for her school fees and her school uniform. He does understand now that what he is done is against the law and he has remorse for his actions. He understands the reason for the law, to protect young people from themselves sometimes.
   
8. In this case the young girl was young, quite young at only 13 ½ although the pre-sentence report indicate that she had had a previous sexual relationship.
   
9. Although the parents think now that they wish they did not make a complaint, they are right to want to protect their young daughter from sexual relationships at an age when she is still a child however big she looks.
   
10. The other thing that needs to be recorded is that there have been two custom ceremonies for reconciliation and forgiveness, in December and in January. This is confirmed by Chief Jack, the Defendant’s chief and by the parents of the girl. Those custom ceremonies appeared to have been successful in that the young girl’s parents have accepted forgiveness. They are not against the relationship in itself but they naturally think their daughter should wait until she is older before she goes go live with Mr. Macreveth.
    
11. All parties, the prosecution, the defence counsel and the probation service are in agreement with their submission as to what the sentence of the Court should be. All of them suggested there should be sentence of imprisonment but it should be suspended and that it also should be linked with another community sentence such as supervision.
    
12. I note that in the two similar case cited to me, PP v. Ben Kaloris CR 17 of 2004 and PP v. Frederick Kaltarikia CR 6 of 2005, in both those cases of unlawful sexual intercourse with a girl under 15, the Chief Justice imposed a sentence of imprisonment but suspended it.
    
13. I agree with the approach he took, that there are factors which mean that a sentence of imprisonment ought to be imposed for a offending of this nature, to mark the gravity of the offence, to mark public disapproval of it and to protect girls, particularly young girls from sexual contact while they are still children. In my view a starting point appropriately is two years imprisonment but that should be reduced by half, to take into account of the guilty plea and also the reconciliation custom ceremonies which the Court is required to take into account under Section 38 of the Penal Code Act.
    
14. The next issue is whether the sentence of imprisonment should be suspended. The law in relation to that is in Section 57 of the Penal Code Act. That provides that to the Court may in its discretion suspend the sentence of imprisonment if the Court considers that in the view of the circumstances the particular nature of the crime and the character of the offender it is not appropriate to make him suffer immediate imprisonment.
    
15. This is a case which fits very much into the law for suspending sentences. The circumstances are unusual in that the girl involved not only consented at the time but continues to be in a close relationship with the Defendant and she benefits from his support.
    
16. As far as the nature of the crime in concerned, some of cases like this involve elements of coercion or taking advantage of the young victim. This case does not seem to have any element like that. This was an apparently a fully consensual relationship without any pressure or coercion nor any use of a relationship.
    
17. Also the character of the offender is a very good character, no previous convictions and he has been successful in life so far.
    
18. The Court also has to have regard to section 37 of the Penal Code Act which now represents the approach in Vanuatu to sentencing. Section 37 says: "If an offender is convicted of an offence punishable by imprisonment, the Court in addition to other sentencing options it may impose have regard to the possibility of keeping offenders in the community so far is that is practical and consistent with the safety of the Community." There is no threat to the safety of the community in Mr. Macreveth remaining in the community.
    
19. For all those reasons I am quite satisfied that it is appropriate to suspend this sentence and I suspend it for a period of 2 years from now. The Defendant must understand that if he offends again during that period either in this way or in any other way, that sentence can be activated.
    
20. Of course it is not an offence to have sexual intercourse with a woman or a girl with her consent once she reaches the age of consent by law but it is an offence obviously to have sexual intercourse with a girl before she reaches the age of consent.
    
21. It has also been recommended that there be a sentence of supervision which is now available to the Court under section 58 F of the Penal Code Act. That sentence is available where a Court imposes a suspended sentence of more that 6 months imprisonment as is the case here. The Court may do it if it is satisfied that it would reduce the likelihood of further offending through rehabilitation and reintegration of the offender. This is so that the Probation Service can help the Defendant in future to prevent further offending.
    
22. There are two particular reasons why I want to impose supervision. The first is because I can impose a special condition that the Defendant live where directed by the Probation Officer. The Court has no power to tell the girl where she lives, but by imposing a condition on a supervision sentence, the Court can give to the Probation Officer a power of directing where the Defendant lives. I give that power in the sentence but I am not directing the Probation Officer how the Probation Officer exercise that power. It will be for the Probation Officer who is in touch closely with the situation not the Court. The probation officer may chose to direct the defendant to live somewhere other than with the girl. Whether the Probation Officer does that or not is for him to decide using his knowledge of the case and his discretion.
    
23. The other reason I want to impose the sentence of supervision is so that I can require the Defendant to carry out the program at Wan Smol Bag which is being proposed in the pre-sentence report.
    
24. So there will be a sentence of supervision for a period of one year. By the time that expires the girl in question will have reached the age of 15 years. The supervision will be on the standard conditions and the following two special conditions:
    
    1. That the Defendant live where directed by the probation officer;
    2. That he attends a Parenting Sexually Rehabilitation Program for 7 months at Wan Smol Bag Clinic, Vila.
       

That completes this sentence.

Dated at Port Vila, this 28th day of February, 2008

BY THE COURT

C.N. TUOHY
Judge