Public Prosecutor v Bebe [2024] VUSC 342; Criminal Case 1350 of 2022 (29 October 2024)

IN THE SUPREME COURT OF Criminal

THE REPUBLIC OF VANUATU Case No. 22/1350 SC/RML

(Criminal Jurisdiction)

BETWEEN:	Public Prosecutor
AND:	Simeon Bebe Defendant

Before: Justice Oliver A. Saksak

Counsel: Mr Ken Massing for Public Prosecutor
Mr Steven Garae for the Defendant

Date of Plea: 29^th October 2024
Date of Sentence: 29^th October 2024

SENTENCE

1. Simeon Bebe sought leave of the Court to be rearraigned on one charge of Act of Indecency with a Young Person contrary to section 98A of the Penal Code Act.
   
2. On rearraignment, the accused pleaded guilty to the charge.
   
3. This is a serious charge which carries a maximum penalty of 10 years imprisonment.
   
4. The offending occurred on 14 June 2016. The defendant was 44 years old at the time but is now 54 years old. The victim was only 2 years and 5 months old at the time. She is now 15 years old.
   
5. The father and mother of the victim went for a swim at a river source at Erangorango on Efate Island. They left the child in the defendant’s care. When they returned after a swim the victim followed them into their room and reported to them that the defendant had touched her vagina through her clothing. This became the subject of a formal complaint to the police. When interviewed on 31^st August 2016 by the Police, he defendant denied the allegation and stated he had nothing to do with it.
6. I heard oral submissions from both Mr Massing and Mr Garae. I gave an opportunity to M Nixon Moli, the Probation Officer to present any oral report about the personal history and character of the defendant but he had nothing to add to the submissions Mr Garae had made orally.
   
7. Mr Massing cited the cases of PP v Gideon [2002] VUCA 7 and Tangiat v PP [2014] VUCA to submit that the Court should adopt a start sentence of 9-12 months imprisonment and to make appropriate deductions after considering mitigating factors to arrive at an end sentence of 6-7 months.
   
8. Mr Massing further submitted that if the Court was minded to suspend the sentence, that an additional sentence of community work for 70-80 hours be imposed.
   
9. Mr Garae cited the case of Gigina v PP [2017] VUCA 15 and agreed to Mr Massing’s submission of a starting sentence of 9-12 months imprisonment and an end sentence of 7-10 months after making allowances for mitigating factors such as the long delay of 8 years, clean past record, willingness to perform custom reconciliation ceremony showing remorse, the change of plea saving time and resources and the victim from the agony to retelling the whole story on open Court, and the period of time spent in custody.
   
10. I considered the following aggravating features such as the serious breach of trust, the great disparity between the ages of the defendant being 44 years old and the child victim being only 2 years and 5 months old, that the offending occurred in a family home but at a time when there was no one around putting the child victim to great risk of being hurt.
    
11. As for mitigating circumstances I considered that the parents of the child victim had failed grossly in their parental responsibility by leaving their child alone in the hands of the defendant to go out and enjoy a swim by themselves. That was a neglect of duty on their part.
    
12. I considered that the offending fell within the lowest end of scale of this kind of offending which involved only touching over clothing. I considered that the defendant had initially denied the allegation and had he maintained his position, Prosecutions might have found difficulty in proving his guilty beyond reasonable doubt.
    
13. I accepted the submissions by both Mr Massing and Mr Garae.
    
14. I therefore convicted and sentenced the defendant on his own guilty plea and adopted a start sentence of 12 months imprisonment.
    
15. In mitigation, I reduced the sentence by 4 months for guilty plea albeit late. I reduced the sentence by a further 2 months for length of delay, his clean past record, his willingness to perform custom reconciliation ceremony despite rejection by the relatives of the victim.
    
16. I sentenced the defendant to an end sentence of 6 months imprisonment. I Ordered a suspension of the sentence for 2 years under section 57 of the Penal Code Act on good behaviour. If the defendant should commit any other offences within 2 years for which he would be charged and convicted, he will go to prison for 6 months.
    
17. I considered that in the circumstances encountered by the Court at Pangi, there was no need to impose an additional sentence of community work.
    
18. That is the sentence of the Court for the defendant. He may appeal within 14 days if he disagrees with it.
    

DATED at Pangi, South Pentecost, this 29^th day of October 2024

BY THE COURT

Hon. OLIVER A SAKSAK

Judge