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Public Prosecutor v Tamol [2004] VUSC 25; Criminal Case 027 of 2002 (8 October 2004)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

Criminal Case No. 27 of 2002

PUBLIC PROSECUTOR

-v-

KALMET TAMOL

Mr. John W. Timakata for the Public Prosecutor
Mr. John Stephens for the Defendant

SENTENCE

This is the sentence of the defendant Kalmet Tamol. The accused pleaded guilty to the offence of one count of incest, contrary to Section 95 (1) (a) of the Penal Code Act [CAP. 135].

The accused is from the island of Epi. From October 1999 to 4 March 2002, he had sexual intercourse with his daughter, the complainant, at home in the village of Mafilau, Epi. At the time of the offending, the girl was 14 years of age. She is now 17 years of age. She was a virgin at the time of intercourse with her father. The father sexually abused her daughter by the use of threats and physical force. The actions were repeated throughout 1999 to 2002. In 2002 the girl left Epi island and live with family in Vila, Efate.

This is a very serious offence of a father sexually abusing his daughter.

Parliament punishes such a conduct with a maximum penalty of 10 years imprisonment.

The appropriate sentence of this case applying the law as set out in the Appeal Court Judgments in PP –v- Gratien Bae, [2003] VUCA 14; Criminal Appeal Case No. 3 of 2003, PP –v- Kevin Gideon, Criminal Appeal Case No. 3 of 2001, PP –v- Willie Atis, Willie [2004] VUCA 4; Criminal Appeal Case No. 2 of 2004 and others, is 4 years imprisonment.

The following are aggravating features:-

• The defendant as the father of the girl/victim was in a position of parental authority and trust as the father of the girl;
• The trust has been breached;
• There is use of threats and physical force;
• The sexual abuse of the father on her daughter was repeated from 1999 to 2002.
  

The sentence is increased from 4 years to 6 years to reflect the aggravating features.

The defendant pleads guilty. He has 6 children (including the complainant). He performed a custom ceremony to his daughter and family sometime in 2002. The custom was witnessed by the chiefs of the village. The defendant gave to the victim the following: a pig, island food, 1 mat and VT1,000 as custom compensation or reparation in accordance with section 119 of the Criminal Procedure Code Act [CAP. 136].

The sentence of 6 years is reduced by 1/3 because of the guilty plea. The balance is further reduced by 6 months for allowance of the custom ceremony. The outstanding term of the sentence is 1 year and 6 months. The defendant had spent 2 months in custody which will also be deducted. The defendant is sentenced to 1 year and 4 months imprisonment with immediate effect .

DATED at Port Vila, this 8^th day of October 2004.

Vincent LUNABEK
Chief Justice.