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Public Prosecutor v Etienne [2009] VUSC 192; Criminal Case 06 of 2008 (30 June 2009)

PUBLIC PROSECUTOR
-v-
JOHN ETIENNE

Mr. Tevi for the State
Mr. Loughman for the Defendant

SENTENCE

These are the sentencing remarks in Criminal Case No. 06 of 2008 Public Prosecutor v. John Etienne. Mr. Etienne is for sentence today on a charge of unlawful sexual intercourse without consent contrary to section 90 of the Penal Code. The maximum term of imprisonment for that kind of offending is life imprisonment. There was originally a second charge of incest concerning the same victim but this was dismissed pursuant to the filing of a nolle prosequi by the Prosecutor previously.

The facts were that Mr. Etienne went and lived with the victim’s family at Mele village. In February 2003 he asked the victim to follow him to a bushed area to eat naus. Initially she refused but he persuaded her and she did follow him. She was 15 years old at that time. When they reached the bushed area he asked her to lie down on the ground but she refused. He pushed her and she fell onto some leaves. She started to cry. He removed his t-shirt and gagged her cries with it by forcing it inside her mouth and then he removed her clothes followed by his clothes and then penetrated her vagina. He told her not to tell anyone what had happened or he would assault her.

The pre-sentence report describes Mr. Etienne as being 31 years of age, trained as a mechanic but now working as a taxi driver. He has no previous convictions. He has expressed remorse for this offending to the author of the pre-sentence report and the recommendation of the pre-sentence report is an inevitable one for offending of this kind it is for a sentence of imprisonment.

The purposes I adopt for sentencing are to denounce Mr. Etienne’s conduct and to deter him and others from behaving against women in this way. Imprisonment is the only possible outcome of the sentencing procedure today. Following the Court of Appeal decisions which I have been referred to and which I have read I adopt a starting point of imprisonment of 5 years. That includes the aggravating features of the age of the victim who as I have said was only 15 years old at that time, breach of trust (Mr. Etienne had gone to live with her family in their village) and the threat that he made to her not tell anyone about what he had done.

In mitigation Mr. Etienne has pleaded guilty at an early opportunity so that the victim has not had to give evidence and his counsel whose urged on me the fact that he is remorseful for this offending and that he has no previous convictions. The discount that I give in relation to this mitigating features is one of 20 months leaving a sentence of 3 years 4 months imprisonment. The question then arises whether the sentence should be suspended. The Court of Appeal in Vanuatu has made it clear in past decisions that suspension of sentences for adult offenders convicted of rape is not an ordinary outcome and I do not think there are anything in the circumstances of this case which would make suspension of the sentence appropriate. I therefore decline to suspend it.

Mr. Etienne has spent some 9 months in custody and of course that time on remand will be deducted from the sentence of 3 years 4 months.

Mr. Etienne has 14 days to appeal from today’s sentence.

DATED at Port Vila, this 30^th day of June, 2009.

BY THE COURT

P. BUTLER
Judge.