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Public Prosecutor v Denny [2008] VUSC 52; Criminal Case 56 of 2008 (10 July 2008)

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

Criminal Case No. 56 of 2008

PUBLIC PROSECUTOR

-v-

MAWA DENNY

Coram: Justice Christopher Tuohy

Counsel: Mr. Molbaleh for Public Prosecutor
Mr. Tom Loughman for the Defendant

Date of Sentencing: 10 July 2008

SENTENCE

1. Mawa Denny appears for sentence after having pleaded guilty to one count of incest against section 95 (1) (a) of the Penal Code Act. Although there is one count, the charge actually specifies
   

"long manis blong August 2006 kasem December 2007, yu bin stap havem sexual intercourse wetem girl ia E".

That charge really covers not just one act of sexual intercourse but a continuing series of acts of sexual intercourse between August 2006 and December 2007 and the facts which have been read to the Court by the Prosecution indicate that there was a continuing pattern of sexual intercourse by the defendant with his daughter over that period of time.

2. Incest is always a serious crime. However, it can occur in a number of circumstances. It can occur for example between brother and sister but here it is between a father and his daughter who is only 15 or 16 old, the father being 20 years or more older than her. For a father to have sexual intercourse with his young daughter is a very serious breach of trust and breach of family relationships.
   
3. It seems that in this case after Mr. Denny’s wife left him he treated his daughter as a sexual object for his use sexually. The facts really indicate something very close to rape although he is not charged with rape. However the facts indicate that he threatened her with a whipping with a stick of orange wood if she did not comply with his wishes and that she did so out of fear of him. The fact that she did not want this is confirmed by her finally running away from home to her mother and eventually telling her mother what had happened. So I have to say this is a bad case of incest.
   
4. To Mr. Denny’s credit, he has pleaded guilty straight away. He cooperated with the Police and he did not put his daughter through the extra stress of having to come to Court and give evidence against him. So he is entitled to full credit for his plea of guilty which also shows his remorse. The pre-sentence report indicates that he now understands how wrong his actions were and he is sorry that he has offended. He is a first offender with no previous convictions.
   
5. The law in relation to sentencing for this form of offending was set out by the Court of Appeal in a case called PP v. Gratien Bae [2003] VUCA 14; CRAC03 of 2003. 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 in the most truly exceptional circumstances which are clearly and unequivocally demonstrated to exist that this will not apply".

There are no special circumstances here. In that case, the offending was similar to this, possibly not quite as bad, but the Court said a sentence of 3 to 5 years imprisonment would have withstood appeal.

6. In this case, the Prosecutor has submitted that a sentence of five years imprisonment is the proper starting point. On the other hand the defence counsel submitted that two years is appropriate and even suggested the possibility of suspending the sentence of imprisonment. I consider that the Prosecutor’s submissions are closer to the mark and certainly there is no possibility of suspending the sentence. In this case there are no grounds for it. I am sure that any suspension of a sentence of imprisonment would be quickly overturned by the Court of Appeal.
   
7. I consider that an appropriate starting point is 4 and half years imprisonment. From that Mr. Denny is entitled to the full normal one third remission or discount for his plea of guilty and remorse. That reduces his sentence to three years. From that must be deducted by law time already spent in custody. So the effective sentence will be three years imprisonment. The actual sentence will have deducted from that one and three weeks time spent in custody. So the sentence will be 2 years 10 months and 1 week imprisonment. That will start today and that takes into account time already spent in custody.
   

Dated at Port Vila, this 10th day of July, 2007

BY THE COURT

C.N. TUOHY
Judge