Public Prosecutor v Navorom - Sentence [2015] VUSC 171; Criminal Case 31 of 2013 (27 November 2015)

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

Criminal Case No.31 of 2013

PUBLIC PROSECUTOR

-v-

PIERRE NAVOROM

Coram: Mr. Justice Daniel Fatiaki
Counsel: Mr. S. Blessings for the State
Mr. B. Livo for the defendant

Date of Decision: 27 November 2015

SENTENCE

1. The defendant was originally charged with two counts of Sexual Intercourse Without Consent to which he pleaded not guilty at Ipota village, Erromango Island. He was then remanded for his trial in Port Vila as all the witnesses who were resident in Port Vila had not been summoned.
   
2. On 14 September the defendant appeared in Port Vila and maintained his not guilty pleas. A trial was fixed for 2nd and 3rd November 2015 and the prosecutor was invited to consider adding an alternative count of indecent assault to the Information. On 29th October 2015 an amended Information was filed with an alternative third count charging the defendant with Act of Indecency Without Consent.
   
3. On 02 November 2015 the defendant was re-arraigned on the amended Information and this time, the defendant pleaded guilty to the indecency charge. He maintained his not guilty pleas to the two earlier counts of Sexual Intercourse Without Consent. The prosecution then entered a nolle prosequi in respect of the latter counts and the defendant was discharged.
   
4. The defendant then admitted the brief facts outlined by the prosecution to the effect that the defendant on the evening of 30 July 2012 had indecently assaulted his wife's 16 year old niece at their home at Ipota village. She was then living with the defendant and attending a school in the village. The defendant under the pretext of asking his niece to fetch a jacket from his bedroom followed her into the bedroom where he forcibly kissed her and got her to masturbate him until he ejaculated.
   
5. The incident was later reported to the police and the defendant was interviewed under caution. Although he denied having sexual intercourse with the complainant he frankly admitted forcefully kissing her, squeezing her breasts over her clothes and making her hold his exposed penis.
   
6. Upon his conviction a pre-sentence report was requested from the Probation Service and I am grateful for the information provided in it which discloses the following personal circumstances of the defendant:
   
   • The defendant is 45 years of age married to the complainant's aunt and has 5 children of which 3 children are still attending junior secondary school at Ipota village;
     
   • He was educated to class 6 and then attended a vocational training school where he attained certificates in joinery and carpentry work. He did further training at the Foundation of the South Pacific in joinery, painting and construction work and he has some knowledge in working on chainsaws and saw mills. He is self-employed and supports his family at Ipota village;
     
   • The defendant is a first offender and by all accounts is a useful and reliable member of the community. He is a chief's representative as well as the person monitoring meteorological data on the island. He is an active member of the Missionary Baptist Church;
     
   • It is also common ground that a kastom reconciliation ceremony was performed involving the exchange of traditional gifts comprising 3 mats; a goat; a local chicken and 4 yards of calico material which was accepted by the complainant's family.
     
7. The offence of Act of Indecency Without Consent contrary to Section 98 of the Penal Code carries a maximum penalty of imprisonment for 7 years. Although not as serious as an Act of Indecency With A Young Person which carries a maximum sentence of 10 years imprisonment, nevertheless, it is a serious offence.
   
8. In Public Prosecutor v. Gideon [2002] VUCA 7 the Court of Appeal said in that case which concerned the more serious charge of Unlawful Sexual Intercourse involving a 12 year old victim:
   

"Men must learn that they cannot obtain sexual gratification at the expense of the weak and the vulnerable ... Men who take advantage sexually of young people forfeit the right to remain in the community".

9. The Court of Appeal also recognized in Public Prosecutor v. Andy [2011] VUCA 14 which also involved a charge under Section 97 (1) of Unlawful Sexual Intercourse, that the following would be aggravating factors in the offence, namely, the disparity in the ages of the victim and the offender; breach of trust; pre-meditation; the harm caused to the victim and the scale of the offending whether repeated or extending over a lengthy period.
   
10. More relevantly in Tangiat v. Public Prosecutor [2014] VUCA 15 which was a case of Indecent Assault under Section 98A where the appellant had touched the victim's breast on the outside of her clothes, the Court of Appeal in allowing the appeal described the offence as falling "at the lower end of the scale for this offence" and for which "9 to 12 months imprisonment was an appropriate starting point".
    
11. Finally and more recently in Wenu v. Public Prosecutor a judgment delivered on 20 November 2013 the Court of Appeal in allowing the appeal and affirming its decision in Tangiat (ibid) said:
    

"In the present cases, we consider that 9 to 12 months imprisonment was an appropriate starting point. The appellant was entitled to a 3 month reduction for his guilty plea. He was entitled to a further 2 months reduction for custom reconciliation and a past clear record.

The appellant was entitled to 1 month for delay since offending in 2012. That reduces his sentence to 3 – 5 months imprisonment. He was entitled to automatic parole release after serving half of his sentence ...".

Later and in lieu of the partly suspended sentence of 18 months imprisonment imposed in the Supreme Court the Court of Appeal substituted "... a sentence of 4 months imprisonment to be wholly suspended for a period of 2 years".

12. So much then for the relevant principles and precedents and turning now to the present case, I consider the offence is aggravated by the breach of trust that should exist between an uncle and his niece living in the same house; by the age difference between the defendant who was a sexually mature man of 43 years and the victim who was a 16 year old student. The offence was also "premeditated" in that the defendant after being rebuffed intentionally created the opportunity for the offence under the pretext of asking the victim to bring his jacket from his bedroom. In light of the aggravating factors I adopt a starting point of 18 months imprisonment.
    
13. From that starting point I deduct 4 months for the defendant's guilty plea and a further 3 months for the kastom reconciliation ceremony and this being the defendant's first offence. The defendant is also entitled to a further reduction of 1 month for the 3 ½ years delay in amending the Information in accordance with the defendant's long-standing admissions in his police interview recorded in April 2013 and in bringing the case to a conclusion after the offending had occurred on 30 July 2012. The total reduction I make for all mitigating factors including the above is 9 months.
    
14. Accordingly, the end sentence I arrive at is (18 – 9) = 9 months imprisonment. However mindful that the defendant has already been remanded in custody for about 4 months awaiting his trial and which is equivalent to serving an 8 month sentence of immediate imprisonment, I order the end sentence suspended for a period of 2 years.
    
15. The defendant is warned that although he will not be returned to prison today, if however he commits and is convicted of another offence in the next 2 years he will be required to serve this sentence of 9 months imprisonment in addition to any other sentence that may be imposed on him for his re-offending.
    
16. In addition the defendant is ordered to perform 150 hours of community work under the supervision of a probation officer.
    
17. If the defendant does not agree with this sentence he has 14 days to appeal against it to the Court of Appeal.
    

DATED at Port Vila, this 27th day of November, 2015.

BY THE COURT

D. V. FATIAKI
Judge.