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Public Prosecutor v Mark [2009] VUSC 16; Criminal Case 57 of 2005 (27 March 2009)

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

Criminal Case No. 57 of 2005

PUBLIC PROSECUTOR

V

JOHNA MARK

Coram: Justice N. R. DAWSON

Date of Hearing: 27th March, 2009

Date of Decision: 27th March, 2009

Counsels: Mrs. Laumae for Public Prosecutor
Mr. Bennett for Accused

SENTENCE

1. Mr. Mark you appear in Court today for sentencing on two charges of Indecent Assault. On or about 28th August, 2004 you indecently assaulted two girls aged 5 and 6 years respectively. At about 2 pm on that date you took both victims to a garden, and in that garden you took the first victim further into another location and indecently assaulted her. You took off her pants and sucked her vagina and her breasts. You then told her to bent down and then stroked your penis on her anus. You then made the victim suck your penis. You then committed the same acts on the second victim by removing her pants and sucking her vagina and breast and rubbing your penis on her anus.
   
2. I note that you have not previous convictions. I have read your Probation Report and I have also read and heard submissions on your behalf from your defence counsel and have read the submissions made to the Court by the Public Prosecutor.
   
3. In sentencing you Mr. Mark it is necessary that you are held accountable for what you did that day. You chose to behave in a way that you did and you are responsible for what you did. I need to take into account the interests of your two young victims and I need also to denounce your behaviour and make it absolutely clear to you and everybody else that this type of offending will not be countenanced in this community. A sentence needs to be imposed and will act as a deterrent to stop people behaving in this way. Young children in our community are entitled to be protected by the Courts and by the community as a whole. They should not be subjected to such foul indecencies as you inflicted upon them on that day. I also need to take into account the effect of your offending on the victims.
   
4. There are aggravating features to your offending. First is the abuse of trust, in the way that you took those two girls out to a garden where you could offend against them. They were both highly vulnerable being 5 and 6 years of age. There are mitigating factors to your offending. It appears from the date of birth on the Probation Report that you were 13 years of age at that time but from what you have told the Court through your counsel it appears you may have been 15 years of age at that time. In either event you were under the age of 16 at the time of the offending and therefore section 38 of the Penal Code Act [Cap.135] is a fact or that the Court needs to take into account when sentencing you today. You also enter guilty pleas at an early stage and the indication to the Court is that you co-operated fully with the police throughout. You have no previous convictions on your record and since this offending nearly 5 years ago you have not offended again. I am told that you are employed and you seem to be behaving as a proper member of the community.
   
5. I have read the probation report and I do have some concerns as to your attitudes after reading that report. The writer notes that you indicated that you thought your actions would not have any impact on the girl’s future and you personally thought it was not a serious offence, because you only did that once and your not a regular activist at this type offending. I hope Mr. Mark you no longer think that because if you do and you offend like this again you will be going to prison for a considerable period of time. This is a disgusting piece of offending notwithstanding your young age at that time and if you or others offend in this way then you can expect to spend a considerable time in prison. The Probation Report notes that you have been living within your community and the people contacted indicate that you have changed your behaviour and you are working and supporting your family financially. If that is the case and you have changed your way of behaving then that is something I need to take into account to your credit.
   
6. After taking all matters into account Mr. Mark it is my view that it is appropriate to sentence you from a starting point to a term of imprisonment of 4 years in prison. I have to take into account the aggravating features I have just mentioned and it is appropriate to increase that sentence by 1 year to a total of 5 years. I have to take into account the mitigating factors which are your young age at that time, your co-operation after the offending and in particular you good behaviour since the time of offending, I am going to reduce your term of imprisonment to 2 ½ years in prison. Also because of your good behaviour since the time of that offending and what appears to be your ability to demonstrate that you can be a good member of your community I am going to suspend that sentence of imprisonment for 2 years. What that means Mr. Mark is that you behave yourself and keep out of trouble for the next 2 years you will not go to prison. But if you come back to Court again you will. I am also imposing sentences so that on both counts you are sentenced on a concurrent basis. I am also imposing a sentence of supervision for 2 years to assist you to continue in the good work that you have done and keeping out of trouble.
   
7. Mr. Mark you have the right to appeal this sentence. For any appeal you must lodge a notice of appeal within 14 days of today’s date.
   

Dated at Port Vila, this 27th day of March, 2009

BY THE COURT

N. R. DAWSON
Judge