Public Prosecutor v Bongnewor [2011] VUSC 87; CRC 42 of 2008 (9 June 2011)

IN THE SUPREME COURT OF THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)
Criminal Case No. 42 / 2008
PUBLIC PROSECUTOR
V
MALU BONGNEWOR

Hearing: 9 June 2011
Before: Justice Robert Spear
Appearances: Leon Malantugun for the State
Eric Molbaleh for the Accused

SENTENCE

1. Malu Bongnewor, you are for sentence on one charge of unlawful sexual intercourse.
   
2. This is offending that took place back in 2006 / 2007 in your home village of Makam on the island of Ambrym. The facts of the case are well set out in the sentencing decision of Justice Tuohy of 3 July 2008 when dealing with three co-offenders. I say they are co-offenders only because their offending relates to the same complainant. You are all friends or associates with each other and are all of a similar age.
   
3. Your offending was identified by Justice Tuohy as being at the same level of seriousness as that of your co-offender, Maxwell James. Justice Tuohy said that Maxwell James and you had sexual intercourse on one occasion with this young girl who was either 13 or 14 at that time that this happened. There was a co-offender who had promoted the sexual encounter and he appears to have suborned the will of that young girl so that she effectively become a sexual play thing for the young men of the village. Of course, she was only 13 or 14 at that time. You were much older (in your early to mid twenties) and you should have known better.
   
4. It is no excuse to say that this other man (Alex Makelibu) really pushed you into having sexual intercourse with teh young girl. You were an adult and you should have said No as she was too young. I reject any suggestion that you did not know that she was as young as she was. It was your responsibility to make sure that she was of an age where she could have lawful sexual intercourse with you.
   
5. This crime is designed to protect the young and the vulnerable and that is why this Court needs to impose a significant sentence when those who commit this crime are apprehended. This type of offending can vary widely as has been evidenced today by the sentences that I have imposed on others. In your case, the fact that this young girl was only 13 and 14 years of age, you were in your twenties and you knew that she was effectively under the control of this Alex Makelibu does you no credit at all.
   
6. The sentence must hold you fully accountable for what you have done, it must promote in you a sense of responsibility for your actions, it must deter you from contemplating offending in this way in the future and it must also sent out a clear message that those who sexually abuse the young and the vulnerable can expect little sympathy or leniency from the Court. Personal circumstances can count for little.
   
7. The reason why you are being sentenced today and that you were not with the others on 3 July 2008 is because you ran away and you have been hiding and attempting to evade justice since 3 July 2008. That also does you no credit at all. There is no specific charge here for breaching the bail which surprises me. If there had been, I would have likely imposed a sentence of imprisonment on you for that charge.
   
8. I am driven to impose the same sentence that Justice Tuohy imposed upon Maxwell James and that is one of 6 months imprisonment.
   
9. I take note that you spent 9 days in custody in March 2008 and that you have spent a further 32 days in custody since your apprehension on Ambrym on 8 May 2011. That results in an end sentence of 4 months and 21 days and that is the sentence of the Court.
   
10. You have the right to appeal this sentence within 14 days if you do not agree with it.
    

BY THE COURT