The facts of the case are that
on or about 28th June, 2000 the defendant asked complainant to
accompany him to Norsup Hospital. From Tautu village to the hospital is
quite a long distance. They had to walk to the hospital and they did so
during the night. The actual incident took place at
around 2 O'clock in the
early hours of the morning. It happened when the defendant diverted by
taking the complainant
from the main road and followed a trail in the bushes
away from the houses where people live. He claimed this way was a short-cut
to the hospital. It was in the middle of the bush trail that the defendant
stopped and asked the complainant for sex.
She refused him being a relative
of his. The defendant then had his way. After struggling with the
complainant the defendant
managed to have intercourse with the complainant
against her will. Police Officers who attended the scene of the incidents
the following morning confirm in their statements that they saw evidence of
a struggle through dried and withered grass
and broken bush vines. The
defendant did not make an admission statement to the police but he admitted
the offence when
he pleaded guilty to the charge as it was put to him in
Court.
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The defendant is a married man.
He got married just last year in They have a 4 year old daud daughter. His
wife has a
serious medical condition who constantly takes bills to ease her
condition. It is anticipated that she would have to have an
operation if the
bills do not cure her. She is at the moment in Vila receiving medical
attention. I am told that his
wife has forgiven him for his action. The
defendant intends to perform a customary ceremony. He claims that after his
arrest he was beaten up by police and suffered multiple bruises. He claims
that he was unable to chew his food properly for
about 3 weeks. When asked
to make a formal complaint, the defendant said he accepted the beating as a
punishment for
his actions. He tells the Court that he felt guilty about his
action straight after the incident. And he asks for forgiveness
from God,
this Court and the families of the complainant. He has been in custody for 1
month and 2 weeks. He asks for
leniency.
I have considered these factors
in sing penalty. But it is my view that this case is serious. ous. It
happened at about
2 O'clock in the early hours of the morning. I don't
accept that the defendant was taking the complainant through a short-cut.
He
was in fact taking her into the bushes away from where people live to make
sure that she would not be heard if and
when she called for help. The time
he picked to the journey indicates his motives. Clearly he had deceived the
girl.
His sick wife explains the defendant's actions. He is a person of good
physical built. The struggles could have ended in bodily
injury, even death.
Fortunately it didn't. Although this is his first sexual offence the
defendant has previous criminal
convictions first on 14th
September 1994 for intentional assault for which he was fined vt1.000 and
prosecution costs of vt500.
On 5th May 1995 for
intentional assault he was fined vt4.000 and paid vt250in prosecution costs.
This is within 9 months after
the previous conviction.
Then on 26th July
1996 for criminal nuisance and drunk isorderly he was fined vt2. vt2.000.
And again on 26th July, 1996 he was imprisoned for 2 months for
unlawful entry, theft and malicious damage to property. This is exactly 12
months after the previous conviction in 1995.
Fros, it is clear to me
that the defendant has a tendency of having problems with the lahe law. He has
served one prison
term of 2 months and it seems to me that that has not
deterred him one little bit. Unlawful entry and theft are serious offences.
Theft carries a maximum of 12 years while unlawful entry carries a maximum
penalty of 20 years where the place entered
into is a dwelling house.
Rape is also a very serious
offence carrying a maximum sentence of life imprisonmIf the defendant
was was not deterred
by a short term sentence, it is my view that the Court
should impose a slightly higher term of imprisonment in order to drive
the
point home to the defendant. In the circumstances, the appropriate sentence
to be imposed is 20 months imprisonment.
It is ordered that the 1 month 2
weeks he has spent in jail be accordingly deducted.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
DATED at Luganville this 7th
day of August, 2000.
OLIVER A. SAKSAK
Judge
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