Public Prosecutor v Belden [2009] VUSC 27; Criminal Case 03 of 2006 (5 May 2009)

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

Criminal Case No. 03 of 2006

PUBLIC PROSECUTOR

V

DONALD BELDEN

Coram: Justice N. R. DAWSON

Date of Hearing: 5th May, 2009
Date of Decision: 5th May, 2009

Counsel: Mr. A. Obed for Public Prosecutor
Mr. H. Vira for Accused

SENTENCE

1. Mr. Belden you appear in Court today for sentencing on two charges of Sexual Intercourse With a Girl Under Care or Protection and one charge of Indecent Assault.
   
2. At the time of the offending you were 36 years of age, and you were the brother in law of the 17 year old complainant.
   
3. The first incident occurred in May 2005. On that particular night the victim was asleep and you started touching her breasts and vagina. You then continued on number of subsequent occasions to touch her breasts and vagina. The victim was afraid to tell your wife because she was frightened her. Every Thursday you wife goes to the market to sell her crops and on one Thursday night in May 2005 while your wife is away you grapped the victim and asked her to have sex with you. The victim refused but you removed her clothes and had sexual intercourse with her. You then told the victim not to tell your wife about your sexual relationship. You then had sexual intercourse with the victim on another Thursday night when your wife had gone to the market. The victim felt guilt and shame for what had happened and in June 2005 she reported what had happened to your wife.
   
4. In sentencing you today Mr. Belden it is necessary to impose a sentence that will promote within you a sense of responsibility for your own behaviour. It is also necessary for this Court to denounce your behaviour and to impose a sentence that will act as a deterrent both to you and any other persons in the community who might feel tempted to misbehave in this way. Young women in our community are entitled to be protected by the law and your sentence needs to reflect the particular gravity of your offending.
   
5. The aggravating features to your offending are that you use force to commit the offences. You also abused the trust of all your family and also of a girl under your care and protection. Because of her age she was vulnerable to your offending. It is also an aggravating feature that you continue to offend against the same victim.
   
6. In mitigation you entered guilty pleas at an early stage. You have also expressed your remorse and you have conducted a custom ceremony.
   
7. Your probation report notes that you are a first time offender and I note that you are now 40 years of age. It also records your remorse for your offending.
   
8. It has been submitted that it is three years since time that your offending took place but I do note that you are responsible for much of that delay as on a number of occasions Warrants to Arrest have issued to bring you to Court. I do take into account that you have five children and your wife is pregnant. Notwithstanding your personal family circumstances the sentencing factor of deterrence requires that I impose a sentence of imprisonment upon you today. I understand that will cause hardship to your wife and family but you are responsible for that hardship due to your behaviour.
   
9. I have taken into account the submissions that have been made by both the prosecutor and your defence counsel, and I am of the view that an appropriate starting point would be a sentence of imprisonment of 15 months. I also take into account the mitigating factors I have already mentioned, and you are convicted and sentenced to a term of imprisonment of 10 months.
   
10. You have the right to appeal this sentence. For any appeal you must lodge a notice of appeal within 14 days of today’s date.
    

Dated at Rovo Bay, this 5th day of May, 2009

BY THE COURT

N. R. DAWSON
Judge