Public Prosecutor v Alex [2008] VUSC 50; Criminal Case 42 of 2008 (3 July 2008)

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

Criminal Case No. 42 of 2008

PUBLIC PROSECUTOR

-V-

MAKELIBU ALEX
MAXWELL JAMES
MASSING NEWOR

Coram: Justice C. N TUOHY

Counsel: Mr. Molbaleh for Prosecution
Mr. Toa for Defendant

Date of Sentence: 3 July 2008

SENTENCE

1. Alex Makelibu, Maxwell James and Massing Raki Steven, you each appear for sentence having pleaded guilty to one charge each of unlawful sexual intercourse with a girl under the age of 15. That is a charge which carries a maximum penalty of 5 years imprisonment.
   
2. This all took place in your home village of Makam on the island of Ambrym. You all were living there at the time of these offences which took place during 2006 and 2007. All of you are in your early twenties, ranging from 20-25 years of age. The girl in question was born on the 25 July 1993 and the offending took place on a couple of dates between July 2006 and December 2007. So at the beginning she was just turned 13 and at the end she was 14 ½ .
   
3. Initially the first offence was by Alex Makelibu in July 2006, when he called her, the victim, from her house one night, took her to the football field, asked her for sex, she refused but you insisted and then there was sexual intercourse. Then one day in 2007 also at the football field you again had sex with her after she initially refused but you then threatened she would be reported to her parents. On that second occasion, you two others, Maxwell James and Malubong Newor, who is not here today, had sex with her as well. And then finally Massing Raki Steven had sexual intercourse with her on two occasions. The first was in June 2007 when she was just about 14 and the second later in 2007.
   
4. Eventually, this news got out in the village and she felt shame and has left the village and come to Port Vila to live and all of you in one way or another have also ended up in Port Vila, all working in a construction company.
   
5. To your credit you have all pleaded guilty as soon as possible. I am not sure how much remorse each of your feels about this. I think you realize now how much wrong you’ve done. You took advantage of someone who was really not much more than a child and you are grown men and basically you used her for your gratification.
   
6. A custom ceremony has been carried out and I get conflicting reports in the pre-sentence reports as to how well that has been accepted. It is possible that one part of her family has accepted it and another part has not accepted it. She herself does not seem to have accepted it very well. But nevertheless you have carried out that ceremony provided a pig and island food and some money and the law says that that has to be taken into account in sentencing.
   
7. All of you have got jobs here. Each of you I think has done two weeks in prison. It is a difficult thing to sentence you. Both counsel have submitted that you should go to prison and they have talked about terms of imprisonment of three years. And both of them have referred me to a case called PP v. Gideon which is a case in the Court of Appeal where the man was charged with the same charge that you all face, and the Court of Appeal said that he should get no less than three years imprisonment, maybe four and the Court said it would only be in the most extreme cases that a sentence of imprisonment should be suspended in a case of sexual abuse. The court said
   

"Men must learn that they cannot obtain sexual gratification at the expense of the weak and vulnerable. And men who take advantage sexually of young people forfeit the right to remain in the community".

8. However the Court did point out that the circumstances which can arise with an offence of this type can vary substantially. On the one hand you can have a very young girl, 10 – 11, living in a home with an uncle who takes advantage of her over many years, and who is maybe 20 or 30 years older than her. On the other hand you can have a boy of 16 and a girl of 14 who have sex together by consent and that is a very different situation even though both are the same offence.
   
9. Your case is nowhere near as bad as the case of Gideon where she was taken advantage of by a relative living in her home, a male relative much older than her over a long period of time and she was only 12. This is a different situation. However there is still a big age gap. You are all in your early twenties she was just 13 and 14. I think there is difference between you, Maxwell James was only one occasion and Massing Raki Steven was 2 occasions but the girl was much closer to the age of consent, she was 14 and 14 ½ .
   
10. I have considered hard whether there can be some sentence short or imprisonment of whether any sentence of imprisonment can be suspended but I do not think the law allows that. I am bound to follow the Court of Appeal’s directions about the appropriate sentence. However the length of sentence that I consider is proper is much less than either counsel has talked about. I intend to impose sentences of imprisonment as follows.
    
11. On Makilebu Alex whom I consider the most serious offender, 1 years imprisonment. On Massing Raki Steven, 9 months imprisonment, Maxwell James, 6 months imprisonment. From that should be taken the two weeks that you each have spent in custody already. So each of those sentences will be reduced by that amount. You will need to understand that you are entitled to automatic parole when you have served half of those sentences. So those are the sentences. They are less than the lawyers think that are appropriate but they are what I think are appropriate. It is hard to send you to prison because you are young and you do not have previous offences but what the Court of Appeal said is right
    

"people have to know and the community has to know that young girls are not there to be used sexually"

and the Courts can only show how wrong that is by sentences.

Dated at Port Vila, this 3rd day of July, 2008

BY THE COURT

C.N. TUOHY
Judge