Home | Databases | WorldLII | Search | Feedback Supreme Court of Vanuatu

Public Prosecutor v Naika [2005] VUSC 67; Criminal Case No 028 of 2005 (8 June 2005)

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

Criminal Case No. 28 of 2005

PUBLIC PROSECUTOR

–v-

SIRI NAIKA

Coram: Justice P I Treston

Mr. Kalmet for Prosecution
Mr. Kausiama for Accused

Date of Sentencing: 08 June 2005

SENTENCE

Mr. Siri Naika, you appear for sentence today on a charge of Indecent Assault. That is a serious enough charge because the maximum potential penalty is ten years imprisonment. And what makes it worse is that this charge is a representative one. It alleges various actions between January and April of 2005. You are the grand-father of the victim and she was only twelve years of age when this happened.

Sometime in January, you touched her breast and pushed your finger into her vagina, she resisted but you persisted. On 4 January 2005, you did that again. On 24 March 2005 while watching television with members of the family, you again held her breast and vagina. In March of this year, you asked her to take off her clothes and began to suck her vagina, later in the month you tried to have sexual intercourse with her but could not penetrate her and you sucked her vagina and her breast again.

The Public Prosecutor presented me with some cases where people were sentenced to either 9 years and 4 months imprisonment or 4 years imprisonment and submits that they are appropriate authorities to follow and in your case should be 7 years imprisonment as starting point.

Your lawyer, submits to me that there are mitigating factors which mean that you should be sentenced to one years imprisonment and he submitted that that sentence could be suspended. I am told by your lawyer that you are 56 years of age, a married man and a first offender. I am told that you cooperated with the police and that you were in custody for two weeks. Through your lawyer, you apologize to the Court and to the victim. The mitigating factors that your lawyer highlights are your plea of guilty, your previous good character, your cooperation and your apology.

Of course, sentencing must cover certain factors that I outline to you. I must have regard to the accountability for the harm done not only to the victim but also to the community generally. I must consider your responsibility in this offending and denounce your conduct. I must deter you and likeminded offenders from this sort of behaviour and I must protect not only the victim but also the community from such offending, and in particular I must protect young children and young persons of this Republic from harm occasioned to them by their elders and relations.

The aggravating features must be balanced against the mitigating ones. The aggravating features are the breach of trust that you have demonstrated by offending against your own grandchild, next, I must note the disparity of age between you at 56 years of age and the victim at 12 years of age. I must take into account that the victim was particularly vulnerable not only because of her age but also because of the fact that you were her grandfather. I must take into account that these were repetitious offences and occurred on a number of occasions. I must also take account of the effect on the victim, that is an aggravating feature and her aunt who looks after her has told the Court that she has effectively lost the innocence of childhood, and has become a person who should be enjoying the joys of childhood but is now preoccupied with things such as her appearance etc and to an extent she has become generally preoccupied since this offending occurred which has deprived her of, as I say of the joys of being a young girl. You have forced her to become an adult before her time.

There are mitigating factors which the Court can take into account. First, the fact that you are a first offender, second that you pleaded guilty at the first available opportunity which demonstrates your remorse and saves the victim from having to give evidence, next, that you cooperated with the police and finally through your lawyer you have apologize to the Court and to the victim for what happened. However, as I have said, the aggravating features far outweigh the mitigating ones and it is my view that because of the repetitive nature of the offending a significant sentence must be imposed upon you.

I have been asked to suspend any sentence of imprisonment but in my view that would be wrong in principle resulting in a sentence which is inappropriate and inadequate. In addition the Court of Appeal in the Public Prosecutor v Gideon Criminal Appeal Case No. 3 of 2001; [2002] VUCA 7 said this: -

"It will only be in the most extreme of cases that suspension could ever be contemplated in a case of sexual abuse. There is nothing in this case which brings it into that category. Men must learn that they cannot obtain sexual gratification at the expense of the weak and the vulnerable. What occurred is a tragedy for all involved. Men who take advantage sexually of young people forfeit the right to remain in the community."

My view is that the appropriate starting point for this offending is six years imprisonment. I deduct one third of that sentence for your plea of guilty and the other mitigating factors. I deduct two weeks from that again to recognize the fact of your previous custody. Thus I today sentence you to 3 years, 11 months and two weeks imprisonment.

You have 14 days to appeal that sentence if you are not satisfied with it.

Dated AT PORT VILA, this 08th day of June 2005

BY THE COURT

P. I. TRESTON
Judge