Public Prosecutor v Tomol [2009] VUSC 28; Criminal Case 52 of 2007 (5 May 2009)

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

Criminal Case No. 52 of 2007

PUBLIC PROSECUTOR

V

KORA TOMOL

Coram: Justice N. R. DAWSON

Date of Hearing: 5th May, 20

Date of Decision: 5th May, 2009

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

SENTENCE

1. Earlier today Mr. Kora Tomol entered a guilty plea for Unlawful Sexual Intercourse with a girl aged 14, and the offence carries a maximum sentence of 5 years in prison. This offending happened in the Rovoliu Area in 2006 and 2007. The defendant was passing by and saw the victim sitting near a river. He went to sit with her and had a conversation during which he asked her for sexual intercourse. She agreed and they went into the nearby bush and had sexual intercourse. At the time the victim was aged 14 years and the defendant was 28 years old. Both the victim and the defendant are now living in a de facto relationship and have a 5 month old baby. The victim is presently 17 years of age and the defendant is now 30 years of age.
   
2. The Court has received an oral report from the probation officer confirming the relationship between the victim and the defendant.
   
3. In sentencing you today Mr. Tomol it is necessary for me to denounce your behaviour and to make it clear that men of your age should not be seeking sexual relationships with 14 year old girls. Young women and girls in our community are entitled to be protected by the law. In sentencing you I need to take into account the relative gravity of your offending.
   
4. There are aggravating features to your offending. The first is the differences is your age. She was 14 years of age at time and you were 28. The victim was also vulnerable to persuasion by you due to her young age. In mitigation you entered a guilty plea at an early stage and you had been remorseful for your behaviour. You are also a person of good character and this is the first time you have offended. You have also compensated the victim by custom by making gifts of a pig, kava, and island food.
   
5. The victim of your offending is present in Court today. She has been brave enough to indicate to the Court that you are doing a very good job of looking after her and your baby and that she wants her relationship with you to continue. She has indicated that if you go to prison she will wait for you until you return. She has confirmed to the Court that she is in a happy relationship with you and wishes that relationship to continue.
   
6. After taking into account the submissions that have been made to the Court by the Public Prosecutor and your defence counsel I am of the view that an appropriate starting point for you would be a sentence of imprisonment of three years. I have to take into account the mitigating factors I have mentioned and it would be appropriate to sentence you to a term of imprisonment of two years. I will then go further and take into account the fact that you are living with the victim in a happy relationship and it is her wish for that relationship to continue and her wish that you do not go to prison for this offence. Because of her support and the support that you have from your community I am going to suspend your sentence of imprisonment for one year. If you do not offend again for the next year then this matter will be at an end. However should you offend again then the Court may re-impose this sentence.
   
7. 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