Public Prosecutor v Young [2024] VUSC 229; Criminal Case 1551 of 2024 (23 July 2024)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU	Criminal Case No. 24/1551
(Criminal Jurisdiction)

PUBLIC PROSECUTOR

v

LENSLEY YOUNG

Defendant

Coram: Justice Oliver A. Saksak

Counsel: Ms Laura Lunabek for Public Prosecutor
Mr Steven Garae for Defendant

Dates of Plea: 17^TH July 2024
Date of Sentence: 23^rd July 2024

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SENTENCE

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1. Lensley Young pleaded guilty to one count of unlawful entry into dwelling house contrary to section 143 (1) PCA ( Count 1) and to one charge of unlawful sexual intercourse with a girl of 13 years old, section 97 (2) PCA ( Count 2). And he is for sentence today.
   
2. He was initially charged with one other count of unlawful entry ( Count 3) and with two other counts of unlawful sexual intercourse ( Counts 4 and 5). However Prosecutions entered nolle prosequi pursuant to section 29 of the CPC Act [ Cap 136] and he was acquitted of those three other charges.
   
3. On the defendant’s own admission of guilt, the Court convicts and sentences the defendant accordingly.
   
4. The facts which the defendant has accepted are simple. In September 2023 he entered into the kitchen house of Georgino Neversevette with intent to commit an offence. He had made plans earlier during the day that he would meet the complainant, a 13 year old student girl who suggested to the defendant to meet her in the kitchen house. The complainant told her mother she was hungry and wanted to eat and asked to go to the kitchen. She met the defendant in the kitchen and they had consensual sexual intercourse. They had established a boy/girl relationship for about 5 months. In 2023 the defendant admitted to the Police he had sex with the complainant twice. He told the Police that in the first place the complainant had lied to him about her age stating she was 15 years old.
   
5. The defendant is now 21 years old and is unemployed. The age difference between them is 6 years at the time of offending in September 2023. The defendant lives on the same street as the complainant. He knew the complainant had lied to him about her age and yet took advantage of her age and had unlawful sexual intercourse with her. The impact on the victim is that she no longer took interest in attending school. They were committed within the confines of the victim’s residential home where she was supposed to be safe. These aggravating features far outweigh the mitigating circumstances and explanations given by the defendant.
   
6. The appropriate punishment to be imposed on the defendant is to be a custodial sentence. In PP v Gideon [2002] VUCA 7 it is well established that men who take advantage sexually of young girls and women forfeit their right to remain in the community and that it is only in the most extreme cases that a suspended sentence should ever be contemplated.
   
7. I note the other cases cited by Prosecutions such as PP v Tioame [ 2003] VUSC 44, PP v Sandy [ 2022] VUSC 24 and PP v Lengkon [2002] VUSC 18. I also note the cases cited by defence counsel which are PP v Ali [ 2000] VUSC 73, PP v Andy [2011] VUCA 14, PP v Ure [2017] VUCA 22, PP v Tari [2023] VUSC 170, PP v Nicholson [ 2011] VUSC 14, PP v Filae [2020] VUSC 164, PP v Malkorkor [2015] VUSC 147 and Korthy v PP [ 2019] VUCA 19.
   
8. Every case is different in its facts and circumstances. No two cases can be exactly the same. The punishment for the defendant in this case must be assessed on its on facts and circumstances. I therefore sentence the defendant as follows:-
   1. For unlawful entry, Count 1- a sentence of 2 years imprisonment concurrent with the sentence for Count 2.
   2. For unlawful sexual intercourse – Count 2- a sentence of 4 years imprisonment.

In total the defendant shall be imprisoned for 4 years.

9. In mitigation I reduce his sentence by 1/3 for guilty pleas which is by 1 year 4 months. The balance of his sentence is 2 years and 8 months.
   
10. Next, I take into account his clean past record, his willingness to perform reconciliation ( though refused) which shows remorse, his acceptance of responsibility and other personal factors including his pre-custodial period of 57 days and deduct the balance of his sentence by a further 8 months. That leaves his end sentence to be 2 years imprisonment.
    
11. I consider whether or not to suspend the sentence. I note what the Court of Appeal said in Korthy v PP and PP v Malkorkor. The defendant is not a young offender. He is not in school as a student or in any employment. As such there are no exceptional circumstances warranting a suspended sentence. His end sentence of 2 years imprisonment shall not be suspended.
    
12. His sentence is immediate as of today. His bail is revoked accordingly. His sentence of 2 years is backdated to 27 March 2024 when he was first remanded in custody.
    
13. That is the sentence of the Court for the defendant. He has a right of appeal against sentence within 14 days.

DATED at Luganville this 23^rd day of July 2024

BY THE COURT

Hon. OLIVER A SAKSAK

Judge