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Public Prosecutor v Robert [1998] VUSC 17; CRC 056 1997 (1 June 1998)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CRIMINAL JURISDICTION

CR No. 56 of 1997

PUBLIC PROSECUTOR

v

WILLIEROBERT

Public Prosecutor for the State
Public Solicitor forr for the Defendant.

SENTENCE

The Defendant warged for 13 Counts.

Count one for Rape under Section 91 of thef the Penal Code and Count two to thirteen for Unlawful Sexual Intercourse with a girl aged 13 years.

The case was adjourned to the 18^th May 1998 for trial. At the beginning of the trial the Prosecutor applied under Section 129 to the Court to withdraw Count 1 and Count 2 to 11 and to proceed with Count 12 and 13, in which both counsels agreed for the Defendant to be re-arrain.

Before re-arraignment I announced that Count 1 for Rape under Section 91 and Count 2 to 11 under Section 97 of the Penal Code be all withdrawn. And therefore give my reasons on such application as follows:

Under Section 129 of the Criminal Procedure Code referred to withdrawals in the Magistrates’ Court. If that is so then only Section 29 of the Criminal Procedure Code is opened to the Public Prosecutor to exercise such right in not proceeding further with the matter. I have address this jurisdictional issue in the case PP-v- Moses Nasu and others. However, I intent to address it again with extension. Under section 29 of the Criminal Procedure Code , the Public prosecutor before a verdict is reached can enter a Nolle Prosequi by informing the Court that he intends not to continue with the proceedings and therefore the accuse shall be discharged. A discharged under section 29 shall operate as a bar to any subsequent proceedings against him on account of the same facts and the defendant shall be treated as though he has been acquitted.

Now can the Public prosecutor lay the same charge basing on the same facts against the defendant?. Section 29 of the Criminal Procedure Code is quiet clear that he cannot. If he does then this, in my view, will amount to abuse of process and the supreme Court can exercise its inherent power to protect its own process from being misused.

On Count 12 and 13 the defendant pleaded guilty to both counts.

Count 12:

That in the month of November 1996 at Manples Area, Willie Robert had sexual intercourse with Annabelle Able who was 13 years of age already. Thereby contravening to Section 97 (2) of the Penal Code.

Count 13:

That in the month of December 1996 at Manples Area, Willie Robert had sexual intercourse with Annabelle who was 13 years already. Thereby contravening to Section 97(2) of the Penal Code.

Both offences carries a maximum penalty of 5 years each.

FACTS

The episode started in 1995 while she was at Vila North Primary school where at one time the Defendant told Annabelle to take off her cloths and he will have sex with her. Sometime the Defendant will call her and when she sees him he will show his private parts to her. This relationship went on until in November 1996 he then had sexual intercourse with her about two or three times a week but could not recall the dates. This continued to the month of December 1996. Sometimes he use to give money or food for her payment for having sex with her.

In submissions by the counsel for the Defense, the Defendant does not deny those acts of sexual intercourse but submitted that there was a relationship developed between the Defendant and Annabelle and ended up in having sexual intercourse. Even no force was used to have sex with her, but before having sex with her they use to go through foreplay. And he use to give money and food as a token of having sex with him.

These excuses given in submission are all irrelevant and the Court need not consider them in mitigation as Section 97(2) is a strict liability offence and provide no defense.

Annabelle further explained that after everytime they having sex he will give her custom leave for her to use so that she will not miss her periods.

After completing her Grade Six at Vila North Primary School she then went to Ulei Junior High School in 1997. On the 22 April 1997 she realized that she missed her monthly period. She told the old man of this after and he told her that she will still have her period. Then in September 1997, she delivered to a fully-grown baby boy, which she delivered at Ulei Junior High School delivered by an old women and later she was brought to Vila Central Hospital.

Her mother had no idea of the child, Annabelle, as was pregnant until she delivered the baby.

The Defendant is a man with a wife and has two children. Whereas Annabelle was only a child in 1995 and completed grade 6 in 1996. The world of sex to her was unknown until the Defendant worn her to his side and thereon I can say she got schooling from the Defendant before actual sexual intercourse which took place in November to December 1996. He has brought her through to that stage. He was the master maker.

He did all tricks he can use to win her to his side in which he did and lastly he had sex with her. As stated earlier, for her to consent to have sex is totally irrelevant in this type of offence.

At the time of having sex with her in November 1996, she was 13 years and a month old and in December 1996, she was 13 years and 2 months old and she gave birth when she was 13 years and 11 months.

As a married man you knew very well that she will be pregnant when you had sex with her and giving custom leave confirmed that. You had no sense of respect to her as a child and show no mercy to her if she is to be pregnant and experience delivery at that age. What you want is to satisfy your sexual desire. Now the girl is no longer in school and she has lost that right of education because of you.

You pleaded guilty to both counts. You are a first offender and you are married.

After consideration of the offences as committed and the offender I consider that a custodial sentence would only be the appropriate penalty for two reasons :

1. As a punishment for your wrong doing to a 13 year old child and

2. as a form of deterrence.

In sentencing you, the maximum penalty under section 97 (2) is 5 years imprisonment. The maximum sentence to 5 years are mostly imposed on second offenders and subsequent offenders but not first offender unless the court think otherwise and stating his reasons as to why it will impose the maximum penalty on a first offender.

And therefore sentence you as follows:

Count 12: you are convicted and sentenced to two years imprisonment and

Count 13: you are convicted and sentenced to two years imprisonment.

Your counsel submit that if you are to be sentence on both counts than such sentence be serve concurrently as there were no aggravating factors involved. As stated earlier, that this type of offence is one of strict liability which leaves no room for any defence or excuses. In your case I consider to impose a consecutive and not a concurrent sentence on you as the most appropriate sentence, in which you will serve a total sentence of fours years altogether. Period in custody will be deducted. You were remanded in custody since the 26^th of September 1997 and therefore eight months shall be deducted which you will now serve a total sentence of three years and four months.

DATED AT PORT VILA this 1st Day of June 1998

R. MARUM
JUDGE