Public Prosecutor v Yona [2009] VUSC 29; Criminal Case 74 of 2006 (5 May 2009)

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

Criminal Case No. 74 of 2006

PUBLIC PROSECUTOR

V

WESLEY YONA

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. Yona appears today for sentencing on the charges of Attempted Unlawful Sexual Intercourse and the charge of Rape with a child under 15 years of age but over 13 years of age.
   
2. At the time of the offending the defendant was aged 19 years and the victim was aged 14 years. The offence occurred in 2006 when the defendant offended by having sexual intercourse without consent with the victim. At that stage the victim was a year 8 student at Epi High School.
   
3. On 28th December, 2005 the defendant sent a girl to ask the victim to go and see him. The victim refused. The defendant then personally approached the victim and asked her to go and wait for him under a tree. Again the victim refused. The defendant insisted and then met the victim under the tree. Defendant started to kiss the victim, took off her skirt and panties, and tried to penetrate the victim. He was unable to do so but as a result of his attempt the victim’s vagina was very sore.
   
4. In April, 2006 during Easter Holidays the victim was playing with her cousins at her uncle’s house when the defendant called for the victim to go and see him. She did so and he then asked her to follow him which she did. The defendant then had sexual intercourse with the victim without her consent and then gave her VT 1,000 note. On the last occasion the defendant had sex with the victim was on 9th September 2006 at night when he took the victim to the beach and started to kiss her, the defendant asked her to take off her clothes but she refused. She finally did so after he insisted. He then again penetrated her.
   
5. I have received a probation report and also received and perused the prosecution and defence submissions. In sentencing you it is necessary to hold you accountable for harm that you have caused to the victim. The sentence need to promote within you a sense of responsibility so this offending does not occur again. The Court needs to take into account the interest of the victim and to denounce your behaviour. A sentence needs to be imposed that will act as deterrent to you and any like minded persons not to offend in this way. Young girls in our community are entitled to be protected and your sentence needs to reflect the gravity of your offending.
   
6. There are aggravating features to your offending. The first is an abuse of trust the victim had in you as an older person and also her vulnerability due to her young age. In mitigation you were 19 years of age at that time and you have expressed remorse. You have no previous convictions and you have made extensive compensation by custom to a value of 57,900 VT.
   
7. Your probation report confirms you are a first time offender and notes that the victim said that you used force upon her and that you monitored her everywhere she went. The probation report confirms that the custom ceremony has been completed.
   
8. Young girls in our community have human rights just like anybody else and you need to remember that. Young girls in our community cannot just be used for men’s sexual gratification as and when they choose. You showed no respect for the victim’s rights and her right to say no to sexual intercourse.
   
9. In particular I take into account the case of the PP v. Gideon before the Court of Appeal. In that case the offender was 25 years and the victim was 12 years of age and that resulted in a sentence of 4 years imprisonment. In your case you were 19 years of age at that time and the victim was 14 years of age. I have therefore formed the opinion that an appropriate starting point to sentence you would be a sentence of imprisonment of three years for the charge of Unlawful Sexual Intercourse. After taking into account the mitigating factors I have mentioned you are convicted and sentenced to a term of imprisonment of 2 years and 3 months. For the charge of Attempted Unlawful Sexual Intercourse you are convicted and sentenced to a term of imprisonment of 1 year to be served concurrently.
   
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