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Public Prosecutor v Tambe [2010] VUSC 208; CRC 01 of 2010 (13 April 2010)

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

Criminal Case No. 01 of 2010

PUBLIC PROSECUTOR

VS.

EDWIN TAMBE

Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Mrs Kayleen Tavoa – Public Prosecutor
Mr Henzler Vira for the Defendant

Date of Plea and Sentence: 13th April 2010

SENTENCE

1. Edwin Tambe you were charged with one count of unlawful sexual intercourse contrary to section 97(1) of the Penal Code Act Cap. 135. You pleaded guilty to the charge this morning. This offence carries a maximum sentence of 14 years imprisonment.
   
2. Your victim was 12 years old in 2005 when the offending took place. You threatened her with a knife so that you could have sexual intercourse with her. You removed her skirt with your other hand and forced her to the ground and forced yourself upon her. She felt great pain and cried but you put your hand over her mouth and stopped her from calling out. She bled but you continued the act, of unlawful intercourse until you ejaculated onto the ground. When she returned home, her aunt saw the blood and cleaned her up. She was treated for 10 days. The other time you had sex with the victim was in 2007 when she was breaking nangai fruits (nuts) at a creek. There were occasions when you stood in her way and masturbated yourself for her to see. You do not dispute those facts.
   
3. From the facts the aggravating features of your case are:-
   
   • (a) You are a mature man of 57 years and married.
     
   • (b) Your victim was under aged at 12 years in 2005.
     
   • (c) There was some degree of force and threats used on the victim.
     
   • (d) Sexual intercourse caused much pain and bleeding and treatment for 10 days.
     
   • (e) Loss of dignity and self esteem resulting in guilt and shame which may haunt her for the rest of her life.
     
   • (f) You exposed yourself to other girls in your community at other times.
     
   • (g) Your actions were repetative.
     

These clearly outweigh your mitigating factors.

4. Obviously you are a danger and risk to very young girls in the community. The Public Prosecutor has submitted that men who take advantage of the weak and the elderly do not deserve to live in the community. The case that sets out that clear principle is Kevin Gideon v. Public Prosecutor. That case is binding on this Court as a Court of Appeal decision.
   
5. The Court notes the same day report submitted by the Probation Officer. That report also recommends a sentence of imprisonment. There is mention of customary reconciliation or fine but that is not confirmed and as such no reliance will be placed upon it.
   
6. The Court takes note of the submissions made by Mr Vira and the mitigating factors and that is the fact that you are first time-offender with no previous criminal convictions, and your guilty plea today. There will be a 1/3 reduction from the total sentence given as credit for these.
   
7. The Court therefore convicts you as charged. You are sentenced to imprisonment. The starting point is 6 years. 1 year is added due to the aggravating features, making a total of 7 years. However, there is a deduction of 4 months from those 7 years.
   
8. You are therefore sentenced to serve the balance of 6 years and 8 months at the Correctional Centre in Luganville.
   
9. Your sentence begins today 13th April 2010. You will be entitled to apply for parole after you have served up to half of your 6 years and 8 months in jail.
   

DATED at Saratamata this 13th day of April 2010.

BY THE COURT

OLIVER A. SAKSAK
Judge