Public Prosecutor v Bob [2009] VUSC 95; Criminal Case 104 of 2009 (27 August 2009)

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

Criminal Case No. 104 of 2009

PUBLIC PROSECUTOR

V

YAPIWAN BOB

Mr. Malantugun for the State
Mr. Kausiama for the Defendant

SENTENCING

Yapiwan Bob appears for sentence. He having pleaded guilty at the first opportunity after the information was amended, and provided that he touched or held the vagina of the complainant and allowed her or assisted her in touching his penis. That being translated to the prisoner prior to his plea and I confirmed today through the translator and the counsel that is the amendment.

The Prosecution for its part identifying the aggravating features and suggested a term of imprisonment in the range of 3 years as appropriate, recognizing the breach of trust, the disparities in ages and the requirement to protect young people in the community.

Mr. Kausiama on behalf of the prisoner stresses that he has no prior convictions, that he pleaded guilty at the first instance and at the first opportunity once the amendment was granted, That the recommendation within the report was for suspension, together with the special conditions as to supervision addressed at assisting the prisoner not to offend again.

The cases referred to by the State are distinguished by Mr. Kausiama’s submission saying that here, there is one incident whereas in other cases there are numerous incidents of indecency, a greater position of trust in respect of the school teacher and the use of a particular classroom within the case itself, and on his basis he says this case is able to be distinguished.

He raises the issue as to suspension that is contained within the pre-sentence report. I gave the State the opportunity to make a submission on that aspect of the case and the State makes it clear that for the purposes of deterrence denunciation and the protection of the community that it is inappropriate to grant suspension when there is a clear breach of trust by a person of this age within the home, where the child should be able to be protected and the breach occurs because of the family assistance proffered to the accused.

In endeavoring to summarise those submissions in no way do I belittle the persuasive way in which both counsel addressed me.

The position in respect of suspension which is the central issue here is covered by Section 57 (1) the execution of any sentence imposed for an offence against any Act, Regulation, rule or Order may, by decision of the Court having jurisdiction in the matter, be suspended subject to the following conditions:

(a) if the Court which has convicted a person of an offence considers that:

(1) in view of the circumstances; and

(2) in particular nature of the crime; and

(3) the character of the offender;

It is not appropriate to make him or her suffer an immediate imprisonment. It may in its discretion order the suspension of the execution of imprisonment sentence it has imposed upon him or her, on the condition that the person sentenced commits no further offence against any Act, regulation, Rule or Order, within a period fixed by the Court, which must not exceed 3 years.

Having considered this section, the circumstances are such that in my view this is a clear breach of trust, but of importance it appears to be a one off incident.

This prisoner has no prior convictions there is no suggestion of any grooming by conduct or any repetition of the offending. People in our society from time to time make errors of judgment not necessarily do they indulge in criminal behavior but here there is clear criminality but it seems no planning, no grooming and the facts indicate this is a one off Incident. Having regard to the facts I am able to take that into account and Secondly and Thirdly the factors identified in the sub section, the character of the offender. He has no prior convictions and there is no criticism contained within the report other than some distorted thinking on a particular aspect.

The Court is able to exercise a discretion. And a discretion should be reviewable in my view, for the reasons given. I emphasize the age of the accused, his lack of prior convictions and in my view of the summary of fact presented to me it is a one off incident. Accordingly, I intend to exercise my discretion in favour of the accused in respect of suspension. Jurisdiction as provided in section 57 subjection 1 (a) being available to me.

The suggested starting point by the State is that of 3 years and giving him credit in respect of the mitigating features the immediate plea of guilty, the acceptance of responsibility and the willingness to participate in the customs ceremony and the lack of prior convictions. The appropriate term of imprisonment in my view is 18 months so he is convicted and sentenced to 18 months imprisonment.

I have already detailed the legal steps required for the consideration of section 57 and I don’t propose to repeat that. That term of imprisonment is suspended for 2 years. in addition he is placed on supervision for 2 years with the special conditions of supervision as provided in the report.

You have 14 days to appeal my decision.

DATED at Port Vila this 27th day August 2009.

BY THE COURT

J.CLAPHAM
JUDGE