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Public Prosecutor v Manfei [2008] VUSC 36; Criminal Case 9 of 2007 (6 May 2008)

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

Criminal Case No. 09 of 2007

PUBLIC PROSECUTOR

-v-

EDWARD MANFEI

Coram: Justice H. Bulu

Counsels: Mrs. Viviane Laumae for the State
Mr. Jacob Kausiama for the Defence

Date of Hearing: 16 April 2008
Date of Decision: 6 May 2008

RESERVED JUDGMENT ON SENTENCE

1. Mr. Manfei, you appear today for sentencing. You have been charged with two counts of unlawful sexual intercourse contrary to section 97 (1) of the Penal Code Act [CAP. 135]. That provision states:-
   

“No person shall have sexual intercourse with any child under the age of 13 years. Penalty: imprisonment for 14 years.”

2. At that time of the offending you were 18 years of age and the victim was 12 years old. You were into the second month of a boy-girl relationship that was growing. On the night of 27 December, 2006 at Erakor Village you had your first sexual encounter with the victim at Kalosine’s house. You slept in that house till the next day. The victim was afraid to return home and you continued to stay at that house till 29 December 2006 when you both went to Lelepa Island. You later returned to the same house and stayed there. On 3 January 2007 you had sex with the victim the second time. You remained there until 5 January 2007.
   
3. The law prohibits a man from having sexual intercourse with a girl who is under the age of 13 years. Anyone who breaks that law attracts the full force of the law and can be punished up to 14 years imprisonment. That is basically what section 97 (1) of the Penal Code Act provides for. Subsection (3) goes further to declare that “It is not a defence to a charge under this section that the girl consented or that the person charged believed that she was over the age in question.”
   
4. The Prosecution has referred the Court to two cases, namely Kevin Gideon, Criminal Appeal Case No. 03 of 2001 and PP v. Samuel Jimmy Criminal Case No. 31 of 2005. In the former case the Court of Appeal held that it “would only be in most extreme cases that suspension could ever be considered. Men must learn that they cannot 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.” The appeal was allowed in that case and the sentence imposed in the Supreme Court was quashed. The Court of appeal said a sentence of 4 years without suspension would be appropriate. This was in relation to a charge/offence under section 97 (1).
   
5. In PP v. Samuel Jimmy, the Supreme Court imposed a sentence of 2 years and suspended it. Again for an offence contrary to section 97 (1) of the Penal Code Act. The circumstances of the two cases are distinguishable, hense great difference in the sentencing options applied.
   
6. The Prosecutions have urged the Court to impose a two year custodial sentence. Further that such a sentence should not be suspended. In the Prosecution’s submissions that would be the appropriate sentence in the circumstances of your offending.
   
7. Counsel on your behalf have urged the Court to take a more lenient view. A custodial sentence of two years would be an appropriate sentence in the circumstances of your case. A third should be deducted for the early guilty plea and a further deductions be made for custom reconciliation, you being a first time offender and that you are remorseful for what happened.
   
8. I have considered carefully what each counsel has submitted to this Court on sentencing. I have considered the facts (brief facts) as put to the Court on which the pleas were taken. The aggravating factors in my view are twofold. First, the age of the victim. She was 12 years at the time of the offending. Second, that she had some alcohol and was under its influence when sex occurred on the first occasion.
   
9. There are clearly mitigating factors existing in this case. You pleaded guilty at the first opportunity and saved the victim from reliving what occurred, save the Court time. You are a first time offender. A reconciliation ceremony has been performed in line with your custom. Island foods, 10 mats, one pig and one head of kava was given to the girl and her family.
   
10. Your counsel has informed the Court that the victim is pregnant with your baby as a direct result of the sexual intercourse you had. The Court asked the victim to take the stand to assist the Court on verifying what you told the Court through your counsel. On queries from the Court the victim:-
    
    • (a) confirmed that she is pregnant with your baby;
      
    • (b) confirmed that you had been in a boy-girl relationship about 2 months when sex occurred;
      
    • (c) confirmed that the relationship remains strong and unaffected by these proceeding;
      
    • (d) Confirmed in her own words “hemi stap se iman blong me”.
      
11. What you did, having sex with the victim, is prohibited by law, due to her age. The law says that you have no defence at all for what you did if you believed her to be of a mature age.
    
12. What is the appropriate sentence in the circumstances of your offending.
    
13. It is my view that a custodial sentence of two years on each count is the appropriate sentence. Such sentence to run concurrently. One third is deducted for your guilty plea. 20% is deducted for the other mitigating factors. Time already spent (2 months) is also deducted. That leaves a balance of 10 months 24 days.
    
14. The offending occurred during a time of a growing relationship between you and the victim. She carries your baby. You still want to be together. The victim confirmed these aspects of your relationship and what is intended for the future.
    
15. In the circumstances peculiar to your case, the sentence is suspended for 10 months 24 days commencing from today’s date. You must not commit any other offence within this period.
    
16. 14 days to appeal.
    

DATED at Port Vila, this 6th day of May, 2008.

H. BULU
Judge.