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Public Prosecutor v Kamisak [1997] VUSC 12; Criminal Case No 040 of 1996 (5 June 1997)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
HELD AT ISANGEL, TANNA

CRIMINAL JURISDICTION

CRIMINAL CASE No. 40 OF 1996

IGN="CENTER">PER">PUBLIC PROSECUTOR

-v-

DANIEL KAMISAK

Coram: Justice Oliv Oliver A. SAKSAK

CounMr Graham BIHU, State ProseProsecutor for the Public Prosecutor
Mr Stephen JOEL, Public Solicitor for the Defendant.

JUD">JUDGMENT

The Defendant appeared before this Court for plea on 4th June, 1997 initially on three counts of Indecent Assault contrary to Section 98 (1) and one count of Rape contrary to Section 91 of the Penal Code Act.

Before the charges were read to the Defendant the State Prosecutor sought leave of the Court to amend Count 4 - Rape to replace with Indecent Assault. There being no objection, leave was granted and the charge was amended accordingly.

The brief facts of the case were that on four different occasions the Defendant had indecently assaulted three little girls. It was alleged that the Defendant had indecently assaulted Anita Nouaniamik, a girl of 6 years during the year 1995. In or about August 1996, the Defendant indecently assaulted Anita again. In or about September 1996, the Defendant indecently assaulted Annie Nalau Talem, Anita’s younger sister, a girl of 4 years of age. Finally on or about 27 September 1996 the Defendant indecently assaulted one Rosina Nako Kual, a girl of 8 years of age.

On all four occasions the Defendant had had to rub his penis against the victim’s vagina until he ejaculated. The first, third and fourth episodes took place in the bushes. The second took place in the Defendant’s kitchen.

Mr Joel on behalf of the Defendant told the Court in mitigation that the Defendant was a simple and an uneducated villager. He is married with 4 children, three of whom are at school. All of his family live on subsistence farming. Mr Joel also told the Court that the Defendant was a first offender and that he had performed custom to Anita’s and Annie’s parents. To Rosina’s parents the Defendant killed a pig and a fowl and exchanged kava, mat, calico and foodstuff. The Court was told that the Defendant was sorry for what he had done.

In passing sentence on 5th June 1997 I said this: This Court finds you guilty on four counts of Indecent assault contrary to section 98 (1) of the Penal Code Act on your own admissions. You admitted indecently assaulting Anita Nouaniamik, a girl of 6 years two times. You admitted indecently assaulting Annie Naku Talem, Anita’s younger sister who is four years old. And you admitted indecently assaulting Rosina Nako Kual, a girl of 8 years of age in 1996. You seem to have an appetite for young girls. You seem to enjoy yourself over the girls but you have failed to see that what you did was against the laws of Vanuatu. And you failed to see that your actions did not cause enjoyment one little bit to the girls except to subject them to pain and the risk of possible irreparable damage. This Court has a duty to protect young girls and I would be failing my duty if I do not send you to prison today.

I have considered that you have had a custom settlement to parents of the girls, that you pleaded guilty to all four charges against you and the fact that you are a first offender. This Court sentences you as follows:

Count 1- Indecent Assault - 5 years imprisonment

Count 2- Indecent Assault - 5 years concurrent

Count 3- Indecent Assault - 5 years concurrent

Count 4- Indecent Assault - 5 years concurrent

You will serve a total term of 5 years imprisonment to commence from 22nd January 1997, the date you were first taken into custody.

You have a right to appeal and you have 14 days.

DATED AT ISANGEL this 5th Day of June 1997

BY THE COURT

OLIVER A. SAKSAK
JUDGE

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