IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
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(Criminal Jurisdiction)
Criminal Case No.10 of 2001
PUBLIC PROSECUTOR
-V-
TAMATA WAHI
Coram: Regget Marum J. MBE
Mr. Less J. Napuati for the
Prosecution
Mr. Kiel Loughman for the
Defendant
SENTENCE
The defendant appeared this
afternoon and pleaded guilty to the charge for the offence under Section 98
(1) of thof the Penal Code. On the brief facts as explained by the Prosecutor,
the counsel for the defendant had no objection and to address other matters
in the brief facts in his submissions.
It is quite clear that the
defendant had two ions of indecently assaultiaulting Meinga Rose, of which
the second time,
that is in January 2000, where he was charged for. In both
occasions, the defendant touches Meinga�s private parts and attempt
to
penetrate in both attempts. In the cause of attempting to penetrate, Meinga
felt a lot of pain.
Meinga is quitery young
girl of ten years old, and at her age she wohe would not have any idea what sex
is all about.
The consequences that may result in penetration at that age
would be serious and could even lead to death. Luckily, the defendant
did
not force penetration.
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The defendant was also of youth
age. There was noute to his age and both couh counsels agreed by the P. I.
documents that
he was 14 years old at the time he committed the offence. On
this advancement, Kiel referred the Court to Section 38 of the
Penal Code,
as the defendant was under 16 years of age at that time he committed the
offence, and should not be sentenced, unless
there are no other penalties
that the Court can impose. He supported this advancement by a decision of
one of my case
Public Prosecutor v. Peter Wayane & others Case No. 08 of
2000. In that case the Court found the defendants guilty for Rape but
imposes a suspended sentence on Browney Tom and Frederick
Harris on the
grounds of Section 38. Therefore, he seeks suspended sentence. Less for the
Public Prosecutor advances
that the offence is a serious offence that
carries a maximum penalty of 10 years. On this advancement, Kiel for the
defendant
advanced that even though 10 years for this offence, the referred
above case Public Prosecutor v. Wayane & others, the other two
defendants had a suspended sentence each for the offence of Rape which the
penalty is much higher than
this offence.
Thendant was a student at
that time he committed the offence and now expelled from TafeaTafea Junior
Secondary School
and regarded as a villager.
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This Court will impose a
custodial sentence on thendant with the view of sect section 38 (1) but will
suspend any sentence
that I will impose on the defendant reflecting the
requirement of section 38. If the defendant was over 16 years surely there
would not be any suspended sentence impose. This is because the nature of
the offence was quite a serious one and call
for a custodial sentence. Not
only that, but the suspended sentence will keep the prisoner on line to be
in line with
the law for a period of the three years and good for him.
For these reasons, I will
sentence the defendant to 3 imprisonment. I will suspesuspend the 3 years
imprisonment on condition
that the defendant shall not commit any offence
within a period of 3 years.
<
Dated at Isangel, Tanna,
thth day of July, uly, 2001.
R. MMBE
JUDGE.
