Public Prosecutor v Nikawatuan [2008] VUSC 41; Criminal Case 69 of 2006 (16 June 2008)

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

Criminal Case No. 69 of 2006

PUBLIC PROSECUTOR

-v-

NUMAKE NIKAWATUAN

Coram: Justice H. Bulu

Counsels: Mr. Leon Malantugun for the State
Mr. Jacob Kausiama for the Defence

Date of Hearing: 6 May 2008
Date of Decision: 16 June 2008

SENTENCE

1. Numake Nikawatuan, you appear today for sentencing. You pleaded guilty to one count of sexual intercourse without consent and one count of incest.
   
2. What you have done is contrary to law. Section 91 of the Penal Code Act says:-
   

“No person shall commit sexual intercourse without consent. Penalty: Imprisonment for life.”

3. Section 95 of the Penal Code Act provides:-
   

“(1) Incest is sexual intercourse between:-

(a) parent and child (including an adopted child);

(b) brother and sister, whether of the whole blood or of the half blood, and whether the relationship is traced through lawful wedlock or not; or

(c) grandparent and grandchild;

where the person charged knows of the relationship between the parties.

(2) No person of or over the age of 16 years shall commit incest.

Penalty: Imprisonment for 10 years.”

4. The facts of the case are not in dispute. You concede to the facts as tendered by the Prosecutor in his sentencing submissions.
   
5. The victim is 15 years of age and is your biological daughter. At the time of the offending she was studying at Lenakel Junior Secondary School, Tanna island.
   
6. On 10 September 2006, after the church service, while the victim was walking back to your village, she met you gathering cattle, you held her right hand and pulled her to a nearby bush about 15 meters away and told her in your language which translates as:-
   

“Let’s go and I would have sexual intercourse with you.”

7. The victim did not say a word, and you pulled her to the bush. At the bush you removed her clothes and made her lie down. Then you removed your clothes and had sexual intercourse with her. After the sexual intercourse, you told her not to tell her mother.
   
8. However when the victim reached home she cried and told her mother about what had happened to her along the road.
   
9. The victim also stated that you, in the past, had had sexual intercourse with her then stopped after the matter was reported to the police in Tanna. However, because there was no prosecution you started to have sexual intercourse with her again. She stated that she is tired of your attitude and wants freedom from you and wants to enjoy life as a normal girl would enjoy.
   

Aggravating features

10. You are the father and you have breached your duty and trust. The incident happened on more than one occasion.
    
11. Prosecutions submit that a custodial sentence of 8 years is the appropriate sentence. Deductions to be made for guilty plea and other mitigating features and also custom reconciliation.
    
12. Your sentence for both offences should be served concurrently.
    

Mitigating features

13. You have pleaded guilty at the earliest opportunity and you are sorry and remorseful. You coperated with the Police.
    
14. Your counsel has submitted that the appropriate sentence in your case should be 5 years. One third be deducted for your guilty plea and further deductions be made for other mitigating features, including custom reconicilliation.
    
15. The law in relation to rape is as stated in PP –v- Gideon CAC03/01. The Court said:-
    

“It will only be in most extreme of cases that suspension could ever be contemplated in a case of sexual abuse. There is nothing in this case which brings it into that category. Men must learn that they cannot obtain sexual gratification at the expense of the weak and the vulnerable. What occurred is a tragedy for all involved. Men who take advantage sexually of young people forfeit the right to remain in the community.”

16. What is the appropriate sentence in the circumstances of your offending.
    
17. The following factors bring out the seriousness of your offending:-
    
    • Age of the complainant;
    • Breach of trust due to the domestic relationship;
    • Offending occurred on more than one occasion;
    • Complainant was specifically told not to tell her mother.
      
18. The circumstances which can arise under section 91 can vary substantially. The facts as outlined above, in my view, place your offending as a very serious one.
    
19. It is my view that the appropriate sentence in the circumstances of your offending is 6 years. One third is deducted. That leaves a balance of 4 years. The custom reconciliation is taken into account, the banishment from your village and island to Vila is also taken into account. That leaves a balance of 3 years 5 months.
    
20. For the count of incest, it is my view, that the appropriate sentence is 1 year.
    
21. The sentences are to be served concurrently.
    
22. Mr. Nikawatuan, it is my sad duty today to sentence you to 3 years 5 months imprisonment from today’s date.
    
23. 14 days to appeal.
    

DATED at Port Vila, this 16th day of June, 2008.

H. BULU
Judge.