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Public Prosecutor v Nako [2006] VUSC 38; CRC 016 2006 (20 June 2006)

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

CRIMINAL CASE No.16 of 2006

PUBLIC PROSECUTOR

-v-

LESLIE NAKO

Coram: Chief Justice Vincent Lunabek

Counsel: Mr Lent Tevi for the Public Prosecutor
Mr Hillary Toa for the Defendant

SENTENCE

This is the sentence of the Defendant, Leslie Nako. Leslie Nako is a young boy of 13 years of age. He was charged and pleaded guilty to an offence of attempting to have sexual intercourse with a girl complainant on 20 April 2006 at Ohlen Freshwind area, Port-Vila. The complainant girl is also a young girl of 13 years of age.

On 20 April 2006, the girl sold food at a market point in the evening at about 12.00PM o’clock. After market, she and one of her friend walked back home. The accused was behind them. The girl’s friend run away but not the girl prosecutrix. The Defendant approached the girl and tried to have sexual intercourse with her after 12 midnight. The complainant girl moved and struggled.

The Defendant then pushes his fingers to touch the girl’s vagina then attempted to penetrate the girl’s vagina but he could not. As a result of her struggling with the boy, the girl complainant sustained injury in the area surrounding her vagina. She suffered 5cm tear between lebia minora and majora leading to haematoma formation. She was hospitalized. She was treated with pain killers. Her vagina was normal. There was no tear. The Defendant was kept in police custody for 2 weeks for his security as there were frictions between the families of the girl and Defendant boy. The girl’s relatives wanted to assault the Defendant boy.

In his mitigation Mr Hillary informed the Court that Leslie left school in 2005 because his parents could not afford to pay for his school fees. In 2005, He attended class 5 at Ecole Publique. He also said that the girl complainant made a sign to him to talk to him. He went and met her. She invited him to have sex with her. He attempted to penetrate the girl’s vagina. He found out that the girl’s vagina was too small. They both put back their clothes and the girl run home first because she was afraid someone will find out.

On 6 May 2006, the Defendant’s father made a custom ceremony to the girl and her family. The Defendant’s father gave the girl and her family a pig valued at VT50,000, mats, role of calico, 1 blanket and 7 bags of Island food. The girl and her family accepted the gifts. The custom ceremony was requested by the girl’s father. The girl and her family shook hands to Leslie and his family. The two (2) families reconciled.

The Defendant did not realize the gravity of the incident at that point in time but now he does. He wanted to go back to school. A letter from the Principal of the Ecole Publique, Port-Vila is shown to the effect that he will be accepted in that school again.

This is a case of a 13 years old boy attempted to rape a 13 years old girl. The following constitute aggravating features:

• Injury sustained as a result of forceful attempt to penetrate the vagina of the girl.
• The incident occurred during the night.
• Offence committed over a young girl of 13 years of age.
  

There is a need to balance these aggravating features with the following mitigating features:

• The boy is a first time offender.
• He pleads guilty at the first opportunity given to him.
• He is a minor of 13 years old.
• A custom ceremony was made and accepted by the girl complainant and her families.
  

This type of offence requires an immediate imprisonment if the offence is committed by an adult person.

In the present case, in exercising the balancing consideration between the aggravating and the mitigating features, taking into account of the very young age of the Defendant, I order that the sentence of the Defendant, Leslie Nako be deferred for a period of 1 year from today's date.

ORDER

1. Leslie Nako, your sentence is deferred. You are ordered to come back for your sentence on 20 June 2007 at 2.00PM o’clock in the afternoon.
   
2. In the meantime, go to school and be of good behaviour and keep peace until 20 June 2007.
   

DATED at Port –Vila this 20th day of June 2006

BY THE COURT

Vincent LUNABEK
Chief Justice