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Public Prosecutor v Lemaya [2005] VUSC 66; Criminal Case No 021 of 2005 (16 May 2005)

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

CRIMINAL CASE No. 21 of 2005

PUBLIC PROSECUTOR

-v-

TAUN LEMAYA

Coram: Chief Justice Vincent Lunabek

Counsel: Mr. Lent Tevi for the Public Prosecutor
Mr. Jacob Kausiama for the Defendant

SENTENCE

This is the sentence of the Defendant, Taun Lemaya. The Defendant is from Epi Island and lives in Lamen Bay Area. On 28 April 2005, the Defendant was charged with the offence of Incest, Contrary to section 95(1)(a) of the Penal Code Act [CAP 135] and the offence of Unlawful Sexual Intercourse, Contrary to section 97(2) of the Penal Code Act [CAP 135].

On 4 May 2005, the Defendant pleaded guilty to each and both offences as charged respectively in counts 1 and 2.

The facts of the case can be summarized as follows:-

Sometime in August 2002, in the morning part of the day, the Defendant asked the complainant, one of his daughters to follow him in the garden while the mother stayed at home to cook the meals for the children who attended school.

The garden is far away from home. On their way, they did not meet with a person. At the garden, the Defendant asked her daughter to go and stay underneath some wild canes. She then asked her father: ‘Bai mi go mekem wanem?’ (what am I going to do there?) The Defendant told her ‘yu go tekemaot panty blong yu ready’ (go, take out your panty and get ready). But the girl stood there, and the Defendant told her again ‘bai yu go mo bai mi brekem yu’ (I will break you). The victim then asked her father, ‘bai yu brekem mi olsem wanem?’ (How are you going to break me?) The Defendant then told her to stay quiet and see how he will do the act on her.

The girl was confused and afraid of what her father told her to do as she had never had sexual intercourse before.

The girl wanted to run away. But she could not do so. She thought that she cannot escape because the garden is far away from home and if she did so, the Defendant could still catch her up. So she remained calm.

She then removed her panty, and she saw the Defendant had removed his clothes just to his knees. The Defendant told her ‘bai yu lay down long grass, mo openem tufala legs blong yu. Bai mi go wetem yu, mo bai melek blong mi bai ino ron insaed long yu blong yu no gat bel’. (You lay down on the grass, and you will open your legs. I will go with you but I will not ejaculate inside your body, so you won’t be pregnant).

Then the Defendant attempted to penetrate the victim/daughter but he could not as the victim felt so much pain. The Defendant removed his penis from the girl’s vagina. He then told her ‘yu stap quiet mo tidem yu nomo, bai mi go bakeken’. (You stay quiet and I will try again). Then the Defendant penetrated his daughter and had sexual intercourse with her. After the sexual intercourse, the Defendant come out of her, she could see blood coming out from her vagina. She also saw the Defendant’s sperm running out from his penis. The Defendant then took some bush leaves and wipe the victim’s vagina.

The Defendant then told his daughter that when they return home, and the mother asked her as to what happened to her walking problem, she has to say that she climb up a coconut tree.

The victim stated in her statement that that was the first time for her to have sexual intercourse, and it was with her father.

Since August 2002 to August 2004, the Defendant continues to have sexual intercourse with his daughter many times at home and in the garden.

The girl did no mention of what her father did to her to anybody. However, when she realized that she became pregnant, she told the following persons: Serah Saling, Chief Apata Maite, David Sam Apata, Chief Avio Jack and others.

On August 2004, the girl felt very sick. The Defendant stopped having sexual intercourse with her during that time.

On 5 April 2005, the Defendant was arrested and brought to Port-Vila police station. He was then cautioned and agreed to make a statement. In his statement, the Defendant admitted having sexual intercourse with her daughter, the prosecutrix.

The medical report produced at the Preliminary Inquiry shows that the girl is pregnant. However, the prosecution does not intend to rely on the Medical Report before this Court on the reason that the victim is also alleged to have sexual intercourse with two (2) other persons.

Since April 2005 to date, the Defendant is remanded in custody.

The defence counsel submitted to the following effect:-

The defence concedes to all facts except that the incidents happened only at home. It is the version of the Defendant that it happened three (3) times.

The defence concedes that this case is a very serious case. The seriousness is shown through punishment. The Defendant was charged with 2 counts. He is 52 years old and a first time offender. He is married with 5 children. The first born girl is at year 12 at a vocational school at Maskelyne, Malekula. The second child is the victim. The third is a girl and she is at class 5 at Lamen Bay. The fourth is a boy at class 2 at Lamen Bay Primary School. The last child is a small girl.

The Defendant pays for the school fees of his children. The Defendant cooperates with the police and pleaded guilty at the first opportunity. This is a sign of remorse and contrition.

The Court is informed that the Defendant committed such offences because his wife refused to have sex with him. She returned to her own Island, Tongoa. However, the defence says that this does not justify the Defendant to commit such a crime – but it is one of the circumstances that lead to the commission of the offence and the Court must consider it. The defence counsel also referred the Court to the case of PP v. Gratien Bae [2003] VUCA 14.

As to the offence of Unlawful Sexual Intercourse, the defence referred the Court to the case of PP v. Kevin Gideon [2002] VUCA 7 and urges the Court to look at the circumstances of the case. In this case, the Unlawful Sexual Intercourse was committed without force. The Defendant did not perform a custom ceremony as the Defendant was arrested and brought to Vila.

The defence submitted that the appropriate sentence for Unlawful Sexual Intercourse should be 3 years imprisonment and the appropriate sentence for the offence of Incest should be 2 years.

The defence asks this Court to consider the circumstances of the case, the guilty plea of the Defendant and give him credit over his honesty. The Defendant is sorry for what happened. In the first place, it should not happen. Only thing Defendant can do is to say sorry.

The law

Section 95 of Penal Code Act [CAP 135] provides:

“INCEST

95. (1) Incest is sexual intercourse between-
    

(a) parent and child (including an adopted child);

(b) brother and sister, whether of the whole blood or of the half blood, and whether the relationship is traced through lawful wedlock or not; or

(c) grandparent and grandchild, where the person charged knows the relationship between the parties.

(2) No person of or over the age of 16 years shall commit incest.

Penalty: Imprisonment for 10 years.

(3) Upon the conviction of any male of an offence or attempted offence under subsection (2) against any female under the age of 18 years the court may divest the offender of all authority over such female and if the offender is the guardian of such female, remove him from such guardianship and in such case appoint another guardian in his place.”

Section 97(2) of the Penal Code Act [CAP 135] provides:

“97. (2) No person shall have sexual intercourse with any child under the age of 15 years but of or over the age of 13 years.

Penalty: Imprisonment for 5 years.”

The general approach of the Court in respect to sexual offending both in the family and generally are fully discussed in PP v. Gratien Bae, Criminal Appeal Case No. 3 of 2003, [2003] VUCA 14; PP v. Kevin Gideon, Criminal Appeal Case No. 3 of 2001, [2002] VUCA7; Peter Talivo v. PP, Criminal Appeal Case No. 20 of 1996, [1996] VUCA 2 and other cases.

In PP v. Gratien Bae, Criminal Appeal Case No. 03 of 2003, [2003] VUCA 14 the Court of Appeal has stated (at page 2 paragraph 7) that:-

“...principles applying to sentences under section 95 of the Penal Code have been repeated time and again by this Court. They were summarized in Solisi Abednigo v Public Prosecutor, Court of Appeal No. 3 of 1990, [1990] VUCA 2 and repeated in more recently in Peter Talivo v. Public Prosecutor, Court of Appeal Case No. 2 of 1996, [1996] VUCA 2 ...”

The principles are simple. Parents who use their children for their own sexual gratification will go to prison. It is almost impossible to imagine circumstances in which that will not be the necessary response... it will only be in the most truly exceptional circumstances, which are clearly and unequivocally demonstrated to exist, that this will not apply.”

I take into account of what the Defendant says on behalf of the Defendant in his defence.

The two (2) offences are very serious offences.

The case is about a breach of trust of a father over his daughter. It reflects a total annihilation of the sanctity of family and its values of love, care and protection. By his action to obtain his sexual gratification on his own daughter, the Defendant has destroyed the very trust his children, family and the society placed upon him as a father.

I take account of what your counsel said on your behalf. However, the fact that your wife left you to her own Island of Tongoa does not justify you to obtain your sexual gratification on your own daughter.

I take into account of your guilty plea and the fact that you are a first time offender and after proper deduction, I sentence you to 5 years imprisonment for Incest in count 1 Contrary to section 95 of the Penal Code Act. I sentence you to 3 years imprisonment for Unlawful Sexual Intercourse Contrary to section 97(2) of the Penal Code Act.

I consider but the circumstance of the case does not warrant to suspend the sentences.

I order the Defendant to serve both sentences concurrently. This means the Defendant shall serve his term of imprisonment of 5 years with immediate effect.

14 days to appeal.

DATED at Port –Vila this 16th day of May 2005

BY THE COURT

Vincent LUNABEK
Chief Justice