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Public Prosecutor v Mariyasua [2000] VUSC 12; Criminal Case No 019 of 1999 (15 March 2000)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CRIMINAL JURISDICTION

CRIMINAL CASE No. 19 OF 1999

IGN="CENTER">PER">PUBLIC PROSECUTOR

-v-

YOAN MARIYASUA

Coram: Mr. Justice Vincent Lunabek J, Acting Chief Justice

Counsel: Mrs. Heather L. Leo, the Public Prosecutor for Prosecution
Mr. Edward Nalial of Counsel for Defendant

SER">SENTENCE

This is the trial of Yoan Mariyasua of Emau Island, North Efate, who was found guilty of tfice of Unlawful Sexual Intercourse, contrary to section 97(2) of the Penal Code Act (Act (CAP 135). The offence carries a maximum penalty of 5 years imprisonment.

Although the sexual intercourse between the defendant Yoan Mariyasua and the girl complainant was by consent from both of them, it is a serious offence indeed to have sexual intercourse with a girl under the age of 15 years but of or over the age of 13 years.

I am told by the defence counsel that as a result of the allegations made against the defendant, he was terminated from his employment as political advisor at the Ministry of Youth & Sports. The defendant has spent one night in the custody from 20 to 21 October 1999. He has been affected by the fact that the allegations against him, were printed in the Vanuatu Weekly and Trading Post Newspapers, and the Radio Vanuatu reported several times.

I have taken all that and any other matter I was told in Court into account.

The prosecution told the Court that there is no violence in the commission of the offence as charged and as the evidence shows, the only problem is the age of the girl complainant which is under 15 years. The defendant has no previous conviction.

The prosecution and the defence counsels both submit, among other things, that a suspended sentence is appropriate in the circumstances of this case.

The prosecution applies also for costs to be awarded against the defendant.

In sentencing the defendant, Yoan Mariyasua, I bear in mind of the offence of sexual assaults against girls complainants which become now common in Vanuatu society. This becomes intolerable.

In sentencing the defendant, I must bear in mind that it is in the interest of Vanuatu community that I make sure that the sentence I impose on the defendant will have a deterrent effect on him, so that he will not re-offend.

I also bear in mind that the kind of sentence to be imposed will serve as a deterrent for others in the community who might be tempted to act unlawfully against the girls as the offender has.

In this case the offence of Unlawful Sexual Intercourse contrary to section 97(2) of Penal Code Act warrants an imprisonment sentence. Applying the law to the circumstances of this case, I am of the view that the appropriate sentence to be imposed on the offence as charged is a term of imprisonment and to be suspended for a period to be fixed by the Court. It is not appropriate to award prosecution costs against the defendant in this case. A suspended sentence for a term of 2 years is sufficient.

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SENTENCING ORNG ORDER

IT IS ADJUDGED that the defendant Yoan Mariyasua is hereby committed to the custody of the Superinte of the Central Prison of Port-Vila, in the Republic of Vanf Vanuatu or his representative for a period of 1 year .

The execution of the said sentence of imprisonment of 1 year is suspended on the following conditions:

1. That the defendant, Yoan Mariyasua commits no further offence against any Act or laws of the Republic of Vanuatu with a period of 2 years as from this 15th day of March 2000;

2. That, if at the end of such period (2 years) the defendant, Yoan Mariyasua, shall not have been convicted of any further offence against any Act, or law of the Republic of Vanuatu, the sentence shall be deemed to be annulled;

3. If, before the end of such period (2 years) the defendant, Yoan Mariyasua is further convicted of any offence against any Act, or law of the Republic of Vanuatu, the original sentence of 1 year shall be immediately executed, in no case concurrently with any subsequent sentence.

4. The nature of the Order is explained to the defendant, Yoan Mariyasua and he understands its meaning.

5. 14 days to appeal.

DATED at PORT-VIRT-VILA, this 15th DAY of MARCH, 2000

Vincent LUNABEK J
Chief Justice (Acting)

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