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Public Prosecutor v Gabriel [2006] VUSC 31; CRC 009 2006 (11 April 2006)

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

Criminal Case No.09 of 2006

PUBLIC PROSECUTOR

–v-

MARIUS GABRIEL

Coram: Justice Treston

Mr. Tevi & Mr. Obed for Public Prosecutor
Mr. Yawha for Defendant

Date of sentencing: 11 April 2006

SENTENCE

Mr. Marius Gabriel, you appear for sentence on a charges of incest. That is a serious charge because the law provides that the maximum potential penalty is 10 years imprisonment. The facts are that you are a married man with 6 children who all live with you and your wife in the Teouma Area of Efate. The victim is your eldest daughter who was 14 years of age at the time. The incident began on August 2005 after the agriculture show where your wife went to the Market in Port Vila to sell your goods. You remained at home with all the children and you called your eldest daughter to come and wash your clothes. You then asked her to massage your back and shortly afterwards when she went to leave the room you closed the door and held onto her neck and pushed her down on the bed. You told her not to cry out or you would squeeze her neck even more. You removed her clothes and had sexual intercourse with her. She cried during that and you told her afterwards not to tell anyone. After that you had sexual intercourse with her from time to time on Sundays when your wife went to the market until February 2006, when you made a statement to the Police and admitted the intercourse.

The Prosecutor submitted to me that the principles are clear and that you should go to jail. He refers to the case of Public Prosecutor v Bae [2003] VUCA 14; Criminal Appeal Case No. 03 of 2003 in the Court of Appeal. There the Court said that a sentence of 3 to 5 years would have withstood appeal. The Prosecutor pointed the various aggravating features out to me and conceded that you have no prior convictions. The victim impact report tells that the victim, who is in Court today, feels shame because of what you have done to her.

On your behalf your lawyer submitted to me that the mitigating factors are such that I should be much more lenient than 3 to 5 years imprisonment. He pointed out to me that I should take very much into account your plea of guilty. He told me your age of 35 and outlined the details of your 6 children. I was told that you are very remorseful and say that you will make changes in your life so this won't happened again, and that your wife and children need your support both morally and physically and economically to carry on. I am given details of the custom settlement that was carried out and that of course is to your credit. That involved a total of VT46,000 including a pig, food, cash, mats and material. As a result of accepting that settlement, the victim wanted to withdraw the complaint and your wife is prepared to have you back. Your lawyer submitted that the starting point should be 3 years perhaps increased for the aggravating features to 5 years and then reduced in accordance with the case of Public Prosecutor v Saki Sam Georges [2004] VUSC 68; Criminal Case No. 18 of 2004 by one-third for your guilty plea and one-third for the custom settlement. Finally, he submitted to me that any sentence should be suspended.

I deal first with the question of custom settlement. Section 119 of the Criminal Procedure Code [CAP 136] provides that:-

"Upon the conviction of any person for a criminal offence, the Court shall, in assessing the quantum of penalty to be imposed, take account of any compensation or reparation made or done by the offender under custom and if such has not yet been determined, may, if he is satisfied that undue delay is unlikely to be there by occasioned, postpone the sentence for such purpose".

In the case of Public Prosecutor v Gideon [2002] VUCA 7 a Court of Appeal Case No. 03 of 2001 the Court said this about section 119-

"It is relevant to an assessment of the quantum of the sentence and not the nature of the sentence. It can influence the length of a sentence of imprisonment or the amount of a fine but not is fundamental nature. In other words the section cannot alter what is otherwise an appropriate immediate custodial sentence into a non-custodial one as occurred in this case."

The Court said that:-

"It will only be in the most extreme of cases that suspension could ever be contemplated in a case of sexual abuse. Men must learn that they can not obtain sexual gratification at the expense of the weak and the vulnerable. Men who take advantage sexually of young people forfeit the right to remain in the community."

So although I will take into account the question of custom settlement it cannot alter the ultimate sentence.

There is also a suggestion that after the first time, the victim did not object to the sexual intercourse. That is a wrong approach as the Court of Appeal said in the case of Gideon. The Court said this:-

"Children must be protected. Any suggestion that a 12 year old (in this case a 14 year old) has encouraged or initiated sexual intimacy is rejected. If a 12 year old (or a 14 year old) is acting foolishly then they need protect from adults. It is totally wrong for adults to take advantage of their immaturity"

When I sentence you Mr. Gabriel, I take into account that I must hold you accountable for the harm done not only to the victim but also to the community. You must be held responsible and I must denounce your conduct and deter you and other likeminded offenders, and there are all too many facing this sort of offence. I need to protect not only the victim, your eldest daughter, but also the community generally and other young girls who are also abused in this way.

I must balance aggravating and mitigating factors. The aggravating features includes first, the serious breach of trust between you as parent and the victim as your daughter, and really not only the breach of trust between you and your daughter but also between you and your wife. I take into account as an aggravating features the age of the victim at the time of 14 years only and the disparity of age between the pair of you, you then 35 years and she only 14 years. Next there was use of force when you grabbed her by the neck and pushed her down to the bed and held her. There was influence you imposed upon her by telling her not to tell anyone what had happened and the fact that this was a representative charge in other words it happened on a number of occasion between August 2005 and February 2006. So this is made more serious because of that factor. Then there is the effect of this upon your daughter. She says she now immediately felt ashamed but the ongoing effects will not manifest themselves probably until years later. I balance the aggravating features against the mitigating ones including your plea of guilty, the fact that you are a first offender, that you express remorse and carried out a custom settlement. However, the law must take its course and the fact that the victim and your wife wanted to withdraw the charges cannot interfere with the proper course of justice. The correct course was set out in the Appeal of Public Prosecutor v Bae [2003] VUCA 14; Criminal Appeal Case No. 3 of 2003. There the Court said this:-

"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. This Court would anticipate that it will only be in the most truly exceptional circumstances, which are clearly and unequivocally demonstrated to exist, that this will not apply. We had considered that there were sufficiently clear statements of the principles from this Court that there could have been no doubt about the situation but there have been drawn to our attention an alarming number of cases at first instance where that correct approach has not been followed.

The prosecuting authority has a duty to innocent children who have been abused in this intolerable way to ensure that sentence which do not follow that approach, are subject to prosecution appeal for correction in this Court."

In addition in the Gideon case the Court of Appeal said that it would only be in the most extreme of cases that suspension could ever be contemplated in a case of sexual abuse. That disposes of the submission in my view that your sentence could ever be suspended.

I have been given the arithmetical approach towards sentences and reduction of sentences by the Chief Justice in the case of Public Prosecutor v Saki Sam Georges [2004] VUSC 68; Criminal Case No. 18 of 2004 but the Court of Appeal in more recent decision has said that sentencing is not a mathematical approach and must be looked at overall.

Of course I take into account your plea of guilty, the fact that you are a first offender, the custom settlement and your time in custody but because of the continuing nature of your offending it is my view that, with the maximum penalty standing at 10 years imprisonment, the starting point should be 6 years imprisonment. Of course I am sympathetic to you and your family and the hardship that will result from a term of imprisonment but justice must be done, and this sort of behaviour must be recognized, as the Court of Appeal said, appropriately as far as sentence is concerned. I allow you all the matters that I have referred to when I reduce the sentence of 6 years imprisonment to 4 years imprisonment which takes into account all the mitigating factors and you are today sentenced to 4 years imprisonment.

You have 14 days to appeal that sentence if you are dissatisfied with it.

Dated AT PORT VILA on 11 April 2006

BY THE COURT

P. I. TRESTON
Judge