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

CRIMNAL CASE No.02 OF 2009

PUBLIC PROSECUTOR

V

FREDERICK LEWAWA

Coram: Chief Justice Vincent Lunabek

Counsel: Mr Eric Molbaleh for the Public Prosecutor 
Mr Henzler Vira for the Defendant

SENTENCE

This is the sentence of the Defendant, Frederick Lewawa. You pleaded guilty to two counts of Indecent Assault, contrary to Section 98(1) of the Penal Code Act [CAP.135]; three counts of rape, contrary to Section 91 of the Penal Code Act [CAP.135]; and one count of Aggravated Sexual Intercourse with a child and Sexual Intercourse without consent.

Introduction and Background

1.	Frederick Lewawa, you were born in October 1970. You are now 39 years old. Until your arrest and remand in custody, you lived with Meriam Thomas in a de facto relationship. You have four children, including your complainant daughter who is currently aged 14 years (DOB 15 February 1995) ("the victim").

2.	 When the victim turned nine years of age on 15 February 2004, you developed an unlawful sexual interest in her. You began to commit sexual offences against her. You continued to regularly commit sexual offences against her until 19 December 2008 when Meriam Thomas witnessed your final assault and made a report to police.

3.	On 23 December 2008, you were arrested by the police and taken into custody. You have remained in custody since that date.

4.	The victim provided statements to police to confirm that you had regularly and repeatedly sexually assaulted her since she was nine years old. She was able to particularize two specific incidents in 2004, one in 2005 and the final sexual assault on 19 December 2008, and those particular incidents have formed the basis for the charges that have been brought before the Court against you. You will note that such charges are representative of repeated, ongoing sexual assaults that occurred between 2004 and December 2008.

5.	All of the incidents the subject of the charges occurred in the family home at Tebakor.

The Facts

The facts are set out within the particular offence alleged to have been committed by you.

Count 1: Indecent Assault

6.	One day in 2004, after the victim had turned nine years old on 15 February you invited her to go with you to cut firewood in the nearby bush. At that time her mother went to a shop. In the bush the victim was cutting the firewood. You were just sitting down. You called the victim to come and see you. She then went to see you. You pulled the victim’s pants down to remove them from her. She did not like it so she resisted by holding it tight. You threatened to slap her. She was so afraid so she remained quiet. You then pulled her pants down to her knees. You then pulled you pants and underwear down to your knees. You then asked her to bend herself down holding onto a stone that was on the ground. She was afraid. She wanted to cry. She wanted to run away. You threatened her to be quiet or you will assault her.

7.	You then penetrated her anus. She felt very painful so she cried loudly. You then remove your penis from her anus. You then pulled her panty and trousers up and said sorry to her. You threatened to assault her if she tells to anyone what you did to her. You ejaculated into her anus.

Count 2: Rape

8. 	The day after the events described in Count 1 (above), your wife went to a shop again. You then called the victim to go inside the house. The victim was in their bush kitchen making the fire to cook some rice. When she went into the house you were in the bedroom of the victim. You pulled her pants to her knees. You asked her to lie down on her bed. You removed your pants to your knees. You then penetrated her anus again. She was crying and tried to run away but you pushed her down to the mattress. She was feeling very painful. She was crying. You told her to be quiet or you will whip her. After penetrating her anus you asked her again to turn over and lie on her back. You then penetrated her vagina. She was feeling very painful also. Again you threatened her not to tell anyone.

9.	The victim did not consent to sexual intercourse with you. You are her biological father.

Count 3: Indecent Assault 

10.	The victim remembers in the year 2005 when she was playing outside then you called her inside. She went in and you removed her pants you asked her to lie down facing down. You then penetrated her anus with your penis. At that time your wife was not in the house. After that you then asked the victim to lie down and face up.

Count 4: Rape

11.	Immediately after committing the Indecent Assault described in Count 3 (above) you then penetrated her vagina (penis inside vagina). The victim was feeling very painful. You ejaculated in her vagina. At that time the victim noticed blood coming out of her anus and vagina.

12.	The victim says that you committed these sexual offences on her every time when her mother is not around. She could not tell anyone because she is afraid that you might assault her as you threatened to assault her earlier. 

13.	You have been committing those offences on the victim since 2004 until December 2008.

Counts 5 and 6: Aggravated Sexual Intercourse with a Child and Sexual Intercourse without consent

14.	The last time you had sexual intercourse with the victim was on 19 December 2008. It was in the morning close to lunch time. The victim and her mother were roasting some breadfruits when you came home drunk. You went inside their bush kitchen and called the victim to remove her pants. She refused. She tried to run away but you pulled her back. You then removed her pants. You then penetrated her anus. You told her not to make any noise. As the victim came out of the kitchen she noticed her mother was there. She told her she is tired of what you are doing to her.

15.	The mother was outside. She thought she might go and see what is happening with her daughter in the kitchen because she does not hear any sign of her. She went to the kitchen wall ( still standing outside the kitchen) she could see you penetrating (penis inside anus) the victim because the wall of the kitchen is not right up to the roof. The wall stops half way. She did not make any noise because she was scared that you might assault her as you usually assault her very badly. The mother then reported the incident to the police.

The Charges

16.	The charges laid against you are based upon the laws as they were enacted at the time of the offending. The offences in 2004 and 2005 predated amendments to the Offences Against Morality provisions contained in the Penal Code (Amendment) Act 2006. Those amendments were introduced by Parliament as a result of the Court of Appeal decision in Vere v. Public Prosecutor [2006] VUCA 15. That case confirmed that a Defendant could not be convicted of rape if he inserted his penis inside a victim’s anus without her consent.

17.	You are charged with the following offences:

Indecent Assault, contrary to Section 98(1) of the Penal Code Act [CAP.135]: Maximum penalty: 10 years imprisonment.

Rape, contrary to Section 90 of the Penal Code Act [CAP.135]: Maximum penalty: Life imprisonment.

Aggravated Sexual Intercourse with a child, contrary to Section 97(A)(1)(d) of the Penal Code Act [CAP.135]: Maximum penalty: Life imprisonment.

Sexual Intercourse Without Consent, contrary to Section 90 of the Penal Code Act [CAP.135]: Maximum penalty: Life imprisonment.

The prosecution has referred to me the following case authorities: 

•	Public Prosecutor v. Scott and Tula (2002) VUCA 29; Public prosecution v. Gideon (2002) VUCA 7; Public Prosecutor v. Bae (2003) VUCA 14 and Public Prosecutor v. Kalsale (2007) VUCA 11. All of the case authorities confirm that the only applicable sentence for the offending such as in this case is an immediate, full time sentence of imprisonment.

According to the guideline judgment in Scott and Tula, the starting point in this case, which involves repeated sexual violation by a father upon his daughter before examination of aggravating and mitigating factors, is eight years imprisonment.

The following are the aggravating factors in the present case:

1.	The rape is repeated; (the offences occurred repeatedly over a period of about four years).

2.	The victim is very young; (the victim was only nine years old when the Defendant began to sexually abuse her.

The prosecution say that, in this case, the Defendant abuse his own daughter over a significant period of time at all opportunities he has when her mother was absent from the house, all the while threatening to do her physical harm if she ever told anybody about it. He only stopped when his crimes were discovered by the victim’s mother. 

The prosecution, thus, submitted, therefore that, the aggravating factors should result in a substantial increase in sentence from the recognized starting pint of eight years. The prosecution submitted that the starting point could be increased by four years to arrive at 12 years before examination of mitigating factors. The prosecution finally submitted that after proper balance with the mitigating factors, the Defendant should be ordered to serve eight years imprisonment on the sentencing principles outlined in Public Prosecutor v. Scott and Tula (2002) VUCA 29; Public Prosecutor v. Gideon (2002) VUCA 7; Public Prosecutor v. Bae (2003) VUCA 14 and Public Prosecutor v. Kalsale (2007) VUCA 11.

Your counsel agrees to the two aggravating features as submitted by the prosecution.

In mitigation, your lawyer says you are 39 years of age. Before you are arrested, you were living in a de facto relationship with the victim’s mother who is now pregnant, and you all reside at Tebakor area until you were arrested for committing these various offences. 

You have four children and three of them are in primary schools, and you pay for their school fees because your wife is unemployed. You are the only person who provides the basic needs at home. You wife is currently pregnant.

You are a primary school leaver leaving school at class 6 and your family was facing financial difficulties and could not pay for your school fees.

You were also building a house until you were arrested, so the house is not yet finished. You were planning to use this house for rent so that income from that could be used for your family financial needs. 

You were a security officer attached with the Au Bon March at Manples area, providing security for its staff and its premises. You provide for every basic need that your family want, since you are the only one employed.

You have skills as a farmer, saw mill operator, and also as a security officer and your future ambition is to become any of the above whether a farmer, security officer or a saw mill operator.

You are a first time offender. You are sorry for what you did. You tell sorry to the Court and victim for what you have done. 

You have been unable to make a custom settlement, since you were remanded in custody. However, you stated that you would still like to made a custom reconciliation to the victim.

The pre-sentence report shows that you were on good behaviour whilst in custody.

Your lawyer acknowledges and agrees to the guideline judgment in the case of Scott and Tula, where the starting point is 8 years, before the examination of aggravating and mitigating factors.

In sentencing you, your lawyer strongly urged the Court to take into account the following:

1.	You have a big family who will need your care;

2.	Your wife is currently pregnant, so the wife and new born baby would need your presence at home, especially when the baby is growing up;

3.	You have 3 kids who will need financial needs from you for school fees;

4.	Your skills in work and your future ambition;

5.	You are remorseful for what you have done, and you say sorry to the Court and victim for what you have done;

6.	You pleaded guilty on the first opportunity in Court, of which ⅓ of the sentence should be reduced;

7.	You have been unable to make a custom settlement, since you were remanded in custody. However, you stated that you would still like to make a custom reconciliation to the victim.

8.	You are a first time offender.

9.	You have been remanded in custody since the 19 December 2008.

Mr Frederick Lewawa, this is a very serious case of abuse of a girl by her own father for his own sexual gratification.

The guideline principles are set out in the Judgment of the Court of Appeal in PP v. Bae (2003) VUCA 14 where it is stated:

"The principles are simple. Parents who used 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. This court would anticipate that it will only be in the most truly exceptional circumstances, which are clearly and unequivocally demonstrated to exist, that this will not apply."

I will apply these principles in this case. This means that the only applicable sentence for offending such as in this case is an immediate and full time sentence of imprisonment.

I shall now proceed with the appropriate sentence in the circumstance of this offending. This case involves repeated sexual violation by a father upon his daughter. 

The guideline Judgment is the case of PP v. Scott and Tula (2002) VUCA 29, where it was stated:

"For rape committed by an adult without an aggravating or mitigating feature, a figure of five years should be taken as the starting point in a contested case. Where a rape is committed by two or more men acting together, or by a man who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive the starting point should be eight years." [Emphasis added]

Applying the above guideline Judgment in the present case, the appropriate starting point is 8 years imprisonment. 

The starting point of 8 years imprisonment must be significantly increased because of the following aggravating features:

1.	The rape is repeated on various occasions. The offences occurred repeatedly over a period of about four years; and 

2.	The victim is very young. The victim was only nine years old when the Defendant began to sexually abuse her.

It is increased to four years making a total of 12 years imprisonment.

I give credit to you for your early guilty plea, cooperation with the police, the fact that you are a first time offender, your previous good character, your remorsefulness of what you have done to your daughter, and other matters raised by your lawyer in mitigation. On balance, the aggravating factors outweigh the mitigating ones.

I sentence you to 8 years imprisonment on counts 1, 2, 3, 4, 5 and 6. You shall serve the term of 8 years imprisonment on each count concurrently. You have already served 3 months and 3 days since your arrest and remand on 23 December 2008. This is deducted from your sentence of 8 years imprisonment.

You are ordered to serve an imprisonment term of 7 years and 9 months with immediate effect.

You have 14 days to appeal this sentence if you are not satisfied with it.

DATED at Port-Vila this 26th day of March 2009

BY THE COURT

Vincent LUNABEK
Chief Justice