Public Prosecutor v Bolenga [2020] VUSC 206; Criminal Case 1350 of 2020 (9 September 2020)

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

Criminal Case No. 20/1350 SC/CRML

BETWEEN:	The Public Prosecutor
AND:	Jevy Bolenga Defendant

Date of Plea: Date of Sentence:	21st July 2020 9th September 2020
Before:	Justice Oliver Saksak

In Attendance:

Mr Simcha Blessing and Paul Sarai for Public Prosecutor Mr Lorenzo Moli for the Defendant

SENTENCE

1. Jevy Bolenga pleaded guilty on 21^st July 2020 to 4 charges of Sexual Intercourse without consent contrary to section 90 and 91 for the Penal Code Act CAP 135 ( the Act) Count 1, domestic violence contrary to section 4 (1) (a) of the Family Protection Act ( Counts 2 and 3) and threats to kill ( Count 4) contrary to section 115 of the Penal Code Act.
   
2. These are serious offendings. The charge in Count 1 carries a penalty of life imprisonment. The charge in Counts 2 and 3 carry a maximum of 5 years imprisonment or a fine of not exceeding VT 100.000. And the charge in Count 4 carries a maximum penalty of 15 years imprisonment.
   
3. The facts are these. The defendant is 30 years old and lives in a defacto relationship with the complainant and victim. On 21^st April 2020 the defendant returned home from his work. He ate pop corn, played with his children and had his shower. He then had some conversations with the complainant. He then told her he would have sex with her that might by penetrating her anus. The complainant did not like the idea and went away to watch TV after which she went into the bedroom and closing the door on the children she started to message the defendant on his back. Then defendant then had his turn by messaging the complainant. The defendant then forced her to lie down on her stomach. He then removed her clothes and penetrated her anus with his penis. The complainant called out aloud due to the pain she had felt in her anus. The defendant wanted to penetrate her again but the complainant refused his demands. The defendant then threatened to use a knife to kill her dead by saying: “ Sapos yu no wantem bae knife ia I traon long yu” which means “ if you refuse, I will put this knife into you.” The defendant also used threatening words against the complainant’s relatives by saying he would just snap his fingers and her relatives would start to die like animals.
   
4. On hearing all these threats the complainant wrote a note on paper and passed it to her little sister on the way to the toilet. Following that note the Vanuatu Mobile Force was called and they came over and apprehended the defendant.
   
5. The case closely resembles that of PP v Rihae [2020] VUSC 175: Crc 1135 of 2020.
   
6. The aggravating features of these offendings were that-
   • (a) The offendings occurred within the confines of the family home.
   • (b) There was a serious breach of trust in that the children were aware or conscious of what was happening in the bedroom when the door was closed on them.
   • (c) A degree of humiliation and loss of dignity by the victim and complainant.
   • (d) Threats were used with a weapon ( a knife).
   • (e) The acts were repeated.
     
7. There were no mitigating circumstances.
   
8. Taking the seriousness of the offendings together with the aggravating factors, I set the starting sentences as follows:-
   • (a) For sexual intercourse consent (Count 1) as the lead offence- 7 years imprisonment.
   • (b) For domestic violence (Counts 2 and 3), 3 months imprisonment on each count concurrent with the 7 years imprisonment for the offence in Count 1.
   • (c) For threats to kill, 3 years imprisonment also concurrent with the sentence for the charges in counts 2 and 3 and count 1.

The total concurrent sentence shall be 7 years imprisonment.

9. In mitigation I allow a 1/3 reduction for guilty plea and reduce his start sentence by 2 years and 4 months. I take account of his clean past with no previous criminal history, the custom ceremony performed on his behalf and his other personal factors, I allow a further reduction of 8 months. That leaves his end sentence at 4 years imprisonment.
   
10. Jevy Bolenga is now convicted and sentenced to an end sentence of 4 years imprisonment backdated to 21^st April 2020.
    
11. As there are no circumstances warranting a suspended sentence, the sentence of 4 years imprisonment will not be suspended. It takes effect immediately as of today’s date.
    
12. There is right of appeal against this sentence within 14 days if the defendant is not happy with it.
    

DATED at Port Vila this 9^th day of September 2020

BY THE COURT

OLIVER.A.SAKSAK

Judge