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Public Prosecutor v Isaac [2011] VUSC 31; Criminal Case 52 of 2007 (20 April 2011)

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

Criminal Case No. 52 / 2007

PUBLIC PROSECUTOR

V

WILLIE ISAAC
JOHN TUWI

Hearing: 20 April 2011
Before: Justice Robert Spear
Appearances: Simcha Blessing for State
Andrew Bal for Accused

SENTENCE

1. Willie Isaac and John Tuwi you are each for sentence today on a charge of Unlawful Sexual Intercourse. This offending occurred back in 2006 and with you John Tuwi it occurred in June 2006, in respect of you Willie Isaac in August 2006. The girl concerned was only 14 years of age at that time. You were each 18 years of age at that time.
   
2. It is unfortunate that it had taken so long for this case to be brought to this state of conclusion. It is unfortunate for the complainant and her family and it is unfortunate for you. However there are and have been practical considerations that had meant that that has been difficult to resolve this case before now.
   
3. Notwithstanding that you made early admissions, full confessions to the Police when first approached about this. In respect of each case the young girl concerned was also a member of your same village so she was someone well known to you. She was however a young girl of 14 years of age and as we describe it normally as young and vulnerable. That is the purpose of this particular crime it is to protect the young and vulnerable. Those older men who wish to have sexual intercourse or want to have sexual intercourse with young girls have to pay the consequences. At times you just have to say no to yourself. What is important with this sentence today is this Court says to you this is serious offending it is not offending that can be overlooked it is an offending that must be denounced with emphasizes.
   
4. It is a complicating factor here after offending by the two of you a 28 year old man, one Kora Tomol, had sexual intercourse with this 14 year old girl. He was also from your village. She fell pregnant to him and has had a child to him. He was sentenced by Dawson J on 5 May 2009 to a term of 2 years imprisonment suspended for 2 years.
   
5. That case has some unusual aspect to it. The first is that this man Kora Tomol and the complainant continued their relationship quite consensually and voluntarily. They remain together and that is since the sentence was passed on 5 May 2009. It would appear therefore that the complainant has been able to move on in her life and it is not the case that the sexual offending that occurred with her has blighted her life as the Court often sees it. Be that as it may, the criminal offending of this type must be consequences to you.
   
6. The starting point of imprisonment in a case such as this is 3 years and that was indeed the starting point adopted by Dawson J for Kora Tomol, reduced that by 1 year to reflect the early guilty plea.
   
7. There are differences of course and they have been emphasized by Mr Bal between your offending and the offending by Kora Tomol. The first is that your offending occurred before hand and given the size of the village one would imagine that it was known by Kora Tomol and may well had been an encouragement to him when he committed his offending. In respect I have to speculate as I have no information either way on it. Of greater significance is that fact that he was 28 years of age at that time, where as you were only 18. This can to a certain degree be put down to youthful in digression on your part. But at 18 years of age you knew what you are doing, you knew that she was a young girl and without question both of you knew that you should not be having sexual intercourse with her. The Court has to emphasize with this sentence to anyone who thinks they may that it might be worth the risk, ... not worth the risk.
   
8. In respect of you Willie Isaac you were 18 years of age at that time, you are now 24. This is the only occasion that you have ever offended against a criminal law. It was your first offence and it has been your last offence. Now in a de facto relation of some duration and some stability your wife is pregnant and you have a 1 year old son. You are the sole provider of the family, I note that you are educated to Year 10. I also note that you are prepared to participate in a custom ceremony with the victim and she is similarly agreeable to undertaking that with you under the guidance of your chief.
   
9. John Tuwi again 18 at the time of the offending, now 25 years of age. It was the first criminal offence and it has been the last criminal offence. I note that you are also in a de facto relationship and your wife is 8 months pregnant. You are additionally the sole provider to your family. Similarly to Willie Isaac you are prepared to undertake custom ceremony with the complainant under the guidance and direction of your chief.
   
10. What I propose to do is identify what I consider the appropriate starting point for this offending and move from it to recognise certain factors. First as I indicated this offending requires a starting point of 3 years imprisonment. However, you are both to be considered as less culpable that is the blame is less with you than with Kora Tomol because there was a significant age difference in his case and there wasn't in yours. So for that reason I reduce that to 2 years imprisonment. I then have regard to your guilty plea again all credit is entitled to be given to you. Notwithstanding that this case is taken so long to get to this point. Mr Bal asked for a full one third to be taken off the sentence given that the guilty pleas were entered at what we described as the first reasonable opportunity. He emphasized that there were practical reasons why it was difficult for your guilty pleas to be entered at an earlier time. Mr Blessing for the State accepts that. It is unnecessary for me to go further into that given the State's concession. I am also drawn to achieve some parity some proper comparison between your case and the sentence imposed in the case of Kora Tomol and the sentence imposed on him. For that reason I am bringing the sentence of imprisonment to be considered here right down to 1 year imprisonment. I will suspend it because you both remorseful, everyone is moved on in their lives and because you are prepared to undertake a custom ceremony. So that 1 year's imprisonment is suspended for 2 years.
    
11. You will however each carry out 100 hours community work and you are placed under supervision for a term of 12 months. The conditions attaching to supervision are these:-
    
    1. You will undertake such spiritual counselling as may be directed by your probation officer in conjunction with your church.
       
    2. Undertake traditional counselling as directed by your Chief.
       
    3. You will undertake custom ceremony with the complainant again as directed by the Chief.
       
    4. You will not leave Epi without prior permission of your probation officer for that 12 months supervision period.
       

12. That is the sentence I impose upon you. You each have 14 days to appeal this sentence if you did not accept it.

BY THE COURT