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Public Prosecutor v Fatukai [2004] VUSC 77; Criminal Case 011 of 2004 (24 May 2004)

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

Criminal Case No. 11 of 2004.

PUBLIC PROSECUTOR

-v-

DAVID FATUKAI

SENTENCE

Charge

The defendant, David Fatukai, of Tanna Island was charged with committing incest contrary to Section 95 (1) (a) and (2) of the Penal Code Act [CAP. 135]. The relevant parts are reproduced below:

“95. INCEST

(1) Incest is sexual intercourse between:–

(a) parent and child...;
(b) ........................;
(c) .........................

(2) No person of or over the age of 16 years shall commit incest.

Penalty: Imprisonment for 10 years.”

Committal Proceedings

The Defendant was committed to the Supreme Court in the Magistrates Court on 19^th February 2004. He was remanded in custody on that date and released on bail on 4^th May 2004. He has spent 2 months and 15 days in custody.

Plea

The Defendant pleaded guilty to the charge of incest contrary to Section 95 (1) of the Penal Code Act [CAP. 135] on 4^th May 2004.

Brief facts

The Defendant is a man of 40 years old and lives at Erakor road near Erakor village on Efate. X, the victim is the biological daughter of the defendant and was 13 years old at the relevant time.

Sometime between the 17^th to 22^nd January 2004, on a Saturday morning, the defendant called X to follow him to the garden. On their way to the garden, the defendant demanded sex with her. X was scared of her father’s attitude and began to cry. The defendant forced her to remove her clothing and threatened to cut her neck with the knife if she did not lay down the way he wanted her to so that he could have sexual intercourse with her. X complied and the defendant had sex with her despite her cries of pain in her vagina.

The second time sexual intercourse took place was on the following Monday. The defendant told X to accompany him to cut some laplap leaves by the side of their house. While cutting the leaves, the defendant forced X to have unlawful sexual intercourse with him. He ejaculated between her thighs. It is not clear whether penetration did occur on this occasion.

The third incident took place on the following Wednesday when the defendant tried to have sex with the complainant in their house. He told the complainant to remove her clothings but she refused. The defendant had sex with X while she had her clothes on. He tried to penetrate the complainant with her trousers and panties on. He ejaculated on to X’s trousers. Again it is unclear if penetration did occur on this occasion.

On Thursday night sexual intercourse again took place between the defendant and X. While X was sleeping in her bedroom the defendant approached her and removed her clothing. He approached her from behind and had sexual intercourse with her.

On Friday night the defendant entered X’s room, removed her panties while she was asleep and had sex with her.

The defendant threatened to cut X with a knife if she told anyone about the incidents.

Aggravation

The Prosecution’s submission comprises 4 main points.
The first point is that sentencing of the defendant should not be considered on the basis that it was a one off incident. The act of sexual intercourse occurred on more than one occasion between the accused and the victim. Prosecution submits that this Court should approach sentencing along the principle laid down by PP –v- Gratien Bae, [2003] VUCA 14; Criminal Appeal Case No. 3 of 2003.

The second point relates to the guilty plea entered by the Defendant. Prosecution submits that such admission can be raised as a mitigating factor but says further that a custodial sentence should be the appropriate punishment to be applied to the accused considering the circumstances of the case. The case of PP –v- Gideon Mael, [1998] VUSC 92; Criminal Case No. 18 of 1998 was cited as authority for this proposition.

The third point by Prosecution relates to age and use of force. The defendant clearly was older than X. He was 40 and she was 13 at the relevant time. Aggravating circumstances showed that the accused threatened to cut the complainant with a knife on one occasion and placed her in a position where she could do nothing but submit to his demands for sexual pleasure. He forced X to have sex with him on all the other occasions. The defendant is the father of X, the victim, and has abused the position of trust that was put on him by the victim and other members of the family. The case of Public Prosecutor –v- William Mathew Saul, [2003] VUSC 64; Criminal Case No. 06 of 2004 was cited as authority.

The fourth point by the Prosecution relates to custom settlement. Prosecution submitted that the performance of a custom settlement should not in any way affect the nature of punishment which in this case should be an immediate custodial sentence. The case of Public Prosecutor –v- Peter Wayane & Others, [2000] VUSC 57; Criminal Case No. 08 of 2000 is cited as authority. The nature of the offence in that case is different but Prosecution urges this Court to adopt the sentencing principle applied in that case. Prosecution also urges this court to take into consideration what the Court of Appeal said in the case of Kevin Gideon, [2002] VUCA 7; Criminal Case No. 03 of 2001 in relation to Section 119 of the Criminal Procedure Code and mens attitudes in circumstances as in the present case.

Mitigation

Defence counsel on behalf of the defendant made submissions of mitigating factors which included the following:-

(a) He is married and 40 years old.

(b) He has 4 children and also looks after two children of another brother.

(c) He is financially responsible for his children.

(d) He has performed a custom ceremony, and he has given VT10,000, kava, food and a pig to X at that ceremony.

(e) He has pleaded guilty to the charge and hence relieve X of having to relieve the trauma of the wrong done to her. It is an indication of remorse and contrition. That he has expressed shame, regret and sorrow.

Counsel on behalf of the defendant also asks the Court to be lenient on the defendant considering the mitigating factors put to the Court on his behalf. The case of Public Prosecutor –v- Kalsim Joseph Saccias [1997] VUSC 13 was submitted as authority for this proposition. The three year sentence imposed on the accused for incest in that case was suspended; likewise the five year sentence also imposed for rape. I do not find this case helpful at all in this case. The factor that is crucial in the Courts leniency in that case, is that the sexual offences complained of had stopped for over seven to ten years without recurrences. That was a long period of time after the sexual abuse had stopped sufficient to asses the attitude of the defendant towards his daughter. Sexual activities complained of in this case occurred in late January this year. The matter was reported to the Police in the same month and proceedings commenced immediately after that.

Counsel has also urged this Honourable Court to consider applying Section 43 of the Penal Code Act [CAP. 135]. I have considered that provision and I do not believe that it is one that is appropriate in the circumstances of this case. The offence the defendant has pleaded guilty to is a serious one which carry a maximum sentence of ten years. The defendant did not commit the offence once but five times, and he employed threats or force, or threats and force, or power he had over X, his own daughter, to achieve his aims on each occasion.

Counsel, has further urged this Court to consider applying Section 44, and Sections 47 and 48 of the Penal Code relating to periodic detention and probation orders. I have given these considerations and reject applying these discretionary powers in the circumstances of this case.

Findings

There are clearly mitigating factors. I have taken into account what counsel has submitted on behalf of the defendant. However, in my view, the aggravating factors outweigh them.

Between 17^th – 22^nd January 2004, the defendant committed unlawful sexual intercourse with X, his own daughter 5 times. On the first occasion he forcibly removed her clothes against her will. When she still did not submit to his sexual demand he threatened to cut her neck with the bush knife he had in his right hand. On each other occasion he forced her to have sexual intercourse with her against her will. She did not consent to any.

He has been charged with one count of incest contrary to Section 95 (1) (a) and (2) of the Penal Code Act [CAP. 135]. He has admitted to having unlawful sexual intercourse with X on other occasions during the relevant period. The case of Public Prosecutor –v- Gratien Bae, [2003] VUCA 14; Criminal Appeal Case No. 03 of 2003 is on point. In determining the appropriate form of punishment I must bear in mind the fact that the defendant did not commit one unlawful sexual offence of incest but five. He is a mature person and he knew what he did was wrong.

I take into account his guilty plea. By doing so he has saved X the ordeal of reliving what occurred during the relevant time. He has saved everybody time and costs. However, his guilty plea does not lessen or remove the fact that what he committed in January 2004 is a serious offence which the law treats accordingly.

I agree with the words of His Honour the Presiding Judge in Public Prosecutor –v- Gideon Mael, [1998] VUSC 92; Crim. Case No. 18 of 1998 at page 2 when he said:-

“The Court must impose severe penalty in this type of cases to reflect the seriousness of the offence itself and the circumstances as to how the offence was committed and further to try and prevent such unwanted sex behaviour.”

The defendant is a man of 40 years old with a lot of experience behind him about life. X is 13 years old, a young girl entering her teens who must have been looking forward to a future with hope and expectation of better things to come. The defendant has shattered that dream. He has twisted and used that which is fundamental in a family home, trust, to achieve his sexual demands, him as the father and the provider of good things for, the members of the family.

On the first occasion he threatened to cut her neck with a knife. She submitted to his demand. On the second occasion he blocked her path from returning home and pushed her down on to the ground and had sex with her. On the third occasion he sent his daughters to go to the garden but then prevented X from following the others. He then secured the door to ensure she could not leave and proceeded to have sex with her even though she still had her trousers and pants on. On the fourth occasion, she was asleep and he removed her clothing and forced himself on her from behind. On the fifth occasion he again forced himself on her in bed when she was asleep. Prosecution cited the case of Public Prosecutor –v- W. M. Saul, [2003] VUSC 64; Crim. Case No. 06 of 2003 and urged this Court to use the sentencing principle in that case. The facts and circumstances of that case are different to the case before this Court. That case concerned a brother and a sister and this case concerns a father and a daughter. The essential element in both cases is that the offence happened within the prohibited family insainguity where family members are most vulnerable because they are there to support each other but not to abuse each other in the circumstances as in that case and in the present case. It is a place where such abuse is not expected to happen.

The defendant has performed a custom settlement with X. I am required by Section 119 of the Criminal Procedure Code Act to take into account any form of settlement that has been performed in accordance with custom. Counsel on the defendant’s behalf have submitted to the Court that such a ceremony has taken place. Such custom ceremony does not affect the nature of unlawful acts of sexual intercourse that the defendant has committed with X, one of his own daughters. It is my view that it does not affect the nature of the punishment to be imposed on him either, which in this case must be an immediate custodial sentence. The pronouncement of the Court of Appeal in PP –v- Kevin Gideon, Cr. App. Case No. 13 of 2003 at page 5, is authority on the construction of Section 119 of the Criminal Procedure Code. It stated:-

“Section 119 is relevant to an assessment of the quantum of the assessment and not the nature of the sentence. It can influence the length of a sentence of imprisonment or the amount of a fine, but not its fundamental nature. In other words the section cannot alter what is otherwise an appropriate immediate custodial sentence to a non-custodial sentences as has occurred in this case.”

In relation to men’s attitudes in situations such as this the Court of Appeal at page 6 said this. I quote:-

“men must learn that they cannot obtain sexual gratification at the expense of the weak and the vulnerable. What occurred is a tragedy for all men. Men who take advantage sexually of young people forfeit the right to remain in the community.”

Mr. Fatukai what happened in this case is another tragedy. You took advantage of X. She was in a vulnerable position because she is your daughter and trusts you to look after her properly and not harm her in any way or force her to perform unlawful activities for you.

I have taken into account what counsel has submitted on your behalf and find that the circumstances of the case warrants an immediate custodial sentence. Mr. Fatukai, I sentence you to 3 years in prison. Two and a half months already spent in prison is deducted and so you will only spend 2 years 10 months 15 days.

If you are not happy with this decision you have the right to appeal within 14 days.

MADE at Port Vila, this 24^th day of May 2004.

H. BULU
Judge.