Public Prosecutor v Tari [2011] VUSC 307; Criminal Case 37,38 & 39 0f 2011 (5 December 2011)

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

Criminal Cases No. 37, 38 & 39 of 2011

PUBLIC PROSECUTOR

VS.

ANDREW TARI
KAMOEL BOE TAMATA
JACKSON TOA BANI

Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Mr P. Wirrick for Public Prosecutor
Ms J. Tari for Defendants

SENTENCE

1. Andrew Tari you admitted having sexual intercourse with Hannah Bani, a 12 year old girl in December 2010. It happened on two occasions within a space of 4 days. You were charged under Section 97(1) of the Penal Code Act Cap 135 (the Act. The maximum penalty for this offence is 14 years imprisonment.
   
2. I have perused your Pre-Sentence Report and note that you have performed customary reconciliation by presenting a pig (Mambu) valued at VT10,000. Further, you appeared before a village or custom court and was fined VT5,000. You were placed under church discipline and penance for 3 months. The fine and reconciliation were accepted by the victim and her relatives. I note that you are 23 years old and still a single man.
   
3. Kamoel Boe Tamata, you admitted having sexual intercourse once with Hannah Bani on 22 February 2011. She had just gone past her 12 years by 2 months at the time of offending. You were therefore charged under Section 97(1) of the Act. You pleaded guilty to that charge.
   
4. I note from your Pre-Sentence Report that you are 24 years old. You are a married man with 2 young daughters. Your offending affected your relationship with your wife and no doubt your two young daughters. I note also that like Andrew Tari, you too presented a pig (Mambu) valued at VT10,000 and you appeared before a custom court which fined you VT5,000. I note also that like Andrew you faced church discipline and penance for 3 months.
   
5. Jackson Toa Bani, you admitted having sexual intercourse with Hannah Bani three times on 3rd, 4th and 5th May 2011 consecutively. The victim was only 4 months into her 13 years. The victims' father is your brother. You were charged under Section 97(1) of the Act and you pleaded guilty to that charge.
   
6. It is on the basis of each of your guilty pleas that the Court passes sentences on all three of you today.
   
7. Your victim was one and the same girl. She was 12 years old when Andrew Tari had sex with her in December 2010. she had just turned 13 in 2011 when Kamoel and Jackson had sex with her. After those four times of sexual intercourse the victim did not tell or make any complaints. It was only after her father had discovered text messages left for her on her mobile phone by Jackson Toa that the victim lodged a complaint with the police on 11th May 2011.
   
8. From the facts, it appears the complainant was acting foolishly by texting the defendants and inviting them for sex. She knew she was under age. She was a willing participant in all sexual activities. Yet it appears under the law at it is, there can be no culpability attributed to her. Instead Section 97, as has been said time and time again by the Courts is there to protect this complainant and other young girls. The case of PP v. Gideon [2000] VUCA 7 is clear authority that mature men cannot take advantage of a girl's foolish actions to sexually abuse them. The cases of Tausi v. PP [1990] VUCA 4 and PP v. Mogeror [2007] VUSC 83 are also on point.
   
9. The Court is of the clear view that the most appropriate punishment to be imposed on the defendants is a custodial sentence. However, having weighed the mitigating factors against the aggravating factors, these sentences will be suspended under the provision of Section 57 of the Act.
   
10. The Court therefore convicts the three defendants Andrew Tari, Kamoel Boe Tamata and Jackson Toa Bani as charged and sentences you as follows –
    
    • (a) Andrew Tari – You are sentenced to 6 years imprisonment on each count but made to run concurrently. 6 years as the starting point pursuant to PP v. Karl Andy [2011] VUCA 14. The following mitigating factors are relevant –
      
      • (i) Guilty plea at earliest opportunity.
        
      • (ii) Good cooperation with police and full admissions.
        
      • (iii) First time offender; and
        
      • (iv) Reconciliation showing remorse.
        

For all these, a period of 3 years is deducted leaving the balance of only 3 years imprisonment.

Further, you have been before a custom court. Therefore for that reason, I suspend your 3 years imprisonment term for a period of 2 years from today's date on condition that you do not commit this offence again or any other criminal offences for which you may be charged. If you do, your sentence of 3 years will be activated automatically. This ruling will apply also to defendants Kamoel and Jackson.

(b) Kamoel Boe Tamata – You are sentenced to a period of 6 years imprisonment as a starting point. For the same mitigating factors available to Andrew Tari, the Court hereby deducts 3 years leaving the balance of 3 years imprisonment. And like Andrew, your sentence is suspended for 2 years on the same conditions.

(c) Jackson Toa Bani – You are sentenced to a period of 6 years imprisonment on each count as the starting point. However like Andrew and Kamoel, the Court deducts 3 years leaving the balance of 3 years imprisonment. And like Andrew and Kamoel, you too will serve a suspended sentence for 2 years from today on the same conditions.

11. Those are the sentences of the Court. Each of you has a right of appeal within 14 days if you so choose.
    

DATED at Luganville this 5th day of December 2011.

BY THE COURT

OLIVER A. SAKSAK
Judge