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Public Prosecutor v Loli [2006] VUSC 35; CRC 008 2006 (9 June 2006)

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

Criminal Case No.08 of 2006

PUBLIC PROSECUTOR

-v-

ENOCK LOLI

Coram: Justice P I Treston

Mr. Obed & Mr. Tevi for Prosecution
Mr. Yawha for Accused

Date of Sentencing: 09 June 2006

SENTENCE

Mr. Enock Loli, you appear today for sentence on a charge of incest, that is a serious matter because the law provides that the maximum potential sentence is 10 years imprisonment.

The charge was that you at the time of the offending were living at the Namba two lagoon area. Originally you came from Pentecost. In the years 2004 and 2005, you had sexual intercourse with your adopted daughter. The facts were that at the time of offending she was in general terms aged between 24 and 26 years, you are now aged 60 years and the victim is your adopted daughter. You and your then wife adopted the victim which she was still an infant because you had no children of your own. You and your wife brought the victim up until she attained her adulthood living in the Namba two Lagoon area. Sadly your wife passed away in 2004 and thereafter the offending occurred. The first time that it happened was in fact when your deceased wife was admitted to the hospital and on that occasion you forced the victim to have sexual intercourse with you. The force was such that it caused her to cry out and she suffered some pain. Thereafter intercourse occurred over that two year period that I have talked about. Eventually the victim told her friends what you were doing to her and the matter was reported to the police. In your first statement to the police you denied the offending but then some days later, when you were arrested for breach of bail, you admitted the offence. In fact your change of plea of guilty was after the trial had commenced and after a voir dire hearing had taken place.

The prosecution has referred me to various similar cases in which sentences of imprisonment were imposed. The prosecution also pointed out various aggravating features that I ought to take into account including the breach of trust involved, the fact that the victim is your adopted daughter and the fact that the incest offence happened several times. The prosecution submitted that an appropriate sentence by way of starting point would be five years imprisonment reduced by way of mitigating factors through your plea of guilty and the time that you have spent in custody.

I am grateful for Mrs. Nari who has taken up the case on your behalf at short notice. In her submissions to me, she reminds me that you are a 60 year old man and a widower, that you a person with no previous criminal convictions, that you now understand the seriousness of the offending and that, because of the custodial circumstances that you have been in, you have been unable to perform any custom ceremony.

When I consider sentencing, I must take into account the harm done to the victim and I am told by the prosecutor that since this offending has occurred she has been effected and wishes to avoid contact with other people. The offences have made her shy of other members of the community particularly other men, and no doubt that effect will remain with her for many years to come.

As well as holding you accountable for the harm to the victim and the consequences to her, I must also hold you accountable for the harm that is done to the community generally.

I must denounce your conduct and deter you and other likeminded offenders from behaving in this sort of way, and as well as protecting the victim I must also protect the community at large. When sentencing takes place, the Court must balance one against the other aggravating and mitigating factors. The aggravating factors include the fact that this was continuing criminal behaviour over a two years period which means that the charge is a representative one. I must also take into account the severe and significant breach of trust that you have demonstrated as a parent towards an adopted child. I must also take into account that on the first occasion at least, some force was used to carry out the offending. In addition there has been the effect on the victim which I have set out a little earlier. I also take into account the discrepancy in age between you as an adopted parent of 60 years and her as an adopted child of 24 to 26 years of age.

By way of mitigating factors, I take into account the fact that you are a first offender, I also take into account that you have pleaded guilty but the credit that I give to you for your plea of guilty is less than I might give to others because you pleaded guilty at very much the eleventh hour. The victim had already made her way to Court to give evidence and was no doubt steeling herself to the ordeal that she was expecting but at least at a very late stage, you have avoided the trauma of her having to give evidence about such matters in front of strangers, but as I say the credit for your plea of guilty must be a little less than might be for an earlier such plea. I also note that there does not appear to have been any expression of remorse from you but I suppose that is demonstrated in a small way by your plea of guilty and by your counsel's reference to the fact that you at least thought about custom settlement.

The Courts of this land are quite clear in their approach for offending such as this. The Court as quoted by the public prosecutor in the case of Public Prosecutor v Bae [2003] VUCA 14; Criminal Case No. 03 of 2003 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."

And I note that that is what the Court of Appeal, the highest Court in this land said about cases such as this. Yours, as I have already said, was in the serious bracket of such offending because of its continuing nature. Fortunately, the victim was not very young but nevertheless I am sure that the offence was very traumatic upon her.

My view is this, the starting point for such offending should be a term of imprisonment of 6 years. I take into account the mitigating factors that I have already referred to and the fact that you have already spent three months and thirteen days in jail. Although even that must be tempered by the fact that I know you were in jail for breach of bail. Having said all that and giving you such credit as I can for those factors, I am of the view that the appropriate finite sentence is one of 4 1/2 years imprisonment and you are today sentence to imprisonment for that term.

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

Dated AT PORT VILA on 09 June 2006

BY THE COURT

P. I. TRESTON
Judge