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Public Prosecutor v Tungoro [2005] VUSC 129; CRC 061 2005 (23 November 2005)

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

CRIMINAL CASE No. 61 of 2005

PUBLIC PROSECUTOR

-v-

TOM TUNGORO

Coram: Chief Justice Vincent Lunabek

Counsel: Mr Abel Kalmet for the Public Prosecutor
Mr Peter Bartels for the Defendant

JUDGMENT

This is the sentence of the Defendant, Tom Tungoro. The Defendant was charged with 3 counts of Indecent Assault contrary to Section 98(2) of the Penal Code Act [CAP. 135]. He pleaded guilty to each of the 3 counts as charged and was convicted accordingly.

The Defendant is from Tanna Island. He admitted that on 2003 at Teouma area, Efate, at his house, he indecently assaulted his daughter (I.T.) by touching her breasts, and inserting his finger inside her vagina without her consent (count 1) and at that time, the complainant daughter was 17 years of age. The Defendant also admitted that in August 2004, at Teouma area, in his house, he indecently assaulted his daughter (I.T.) by touching her breasts and inserted his finger into her daughter’s vagina without her consent and at that time, she was 18 years of age (count 2).

The Defendant finally admitted that between January and July 2005, at Teouma area, Efate at the Defendant’s house, he indecently assaulted his daughter (I.T.) by touching her breasts and inserting his finger into his daughter’s vagina without her consent. She was 19 years at the time of the commission of the offence (count 3).

On the three separate occasions, the Defendant has also asked his daughter for sex but she refused. She told the defendant that she could not have sexual intercourse with him because he is her father.

As a result of the complainant’s refusal for sex, the Defendant/father was be very cross and damaged the household items such as plates including burning of his daughter’s clothes.

The girl complainant, then, sought refuge with her family at Mele village on 30 September 2005 because she was afraid of her father/defendant. The Defendant approached her sometime on 2 October and wanted to assault her but other members of the family intervened and brought the Defendant to the police. On 3 October 2005, the girl complainant (I.T.) lodged a complaint and submitted a statement to the police about her father’s actions against her. On 4 October the Defendant was interviewed by the police, and he admitted the complaints made against him by his daughter.

The Defendant is a married man of 51 years. He lives with his family at Group village, Tanna South. The Defendant in explanation for his offending states that he developed “rubbish thoughts” towards his daughter and committed the offences as a result.

The Defendant is aware of what he has done is wrong. He is also aware that he has broken the trust between himself and his daughter. The Defendant when at liberty is a subsistence farmer and supports his family consisting of his wife and four children, the victim being the second eldest.

The offence of Indecent Assault against a girl of 17 years old is prohibited under Section 98(2) of the Penal Code Act.

Section 98(2) of the Penal Code Act [CAP. 135] provides:

“98. (2) No person shall indecently and forcibly assault any other person not under the age of 13 years.

Penalty: Imprisonment for 7 years.”

This is another case of sexual abuse of a girl by an adult let alone her own father. The Court in sentencing the Defendant must condemn this type of offence in the most strongest terms as the Courts always do. Men who take advantage sexually of young people forfeit their right to remain in the community. All children are entitled to be protected by adults. Children must be safe in their own home. When men who have the care of the children abuse that right, they forfeit their right to remain within the community. [PP v. Gideon, Criminal Appeal Case No. 3 of 2001; PP v. Peter Talivo, Criminal Appeal Case No. 2 of 1996.]

This case is about a breach of trust of a father over his daughter. This is reflected on a total annihilation of the sanctity of family and its value of love, care and protection. By his action to obtain sexual gratification on his own daughter, the Defendant has destroyed the very trust his children, family and the society placed upon him as a father.

This case warrants a custodial sentence. The starting point for this sentence is 3 years imprisonment. The facts of the case show that there are aggravating features and they are set out as follows:

1. The victim is a young person of 17, 18 and 19 years at the different times of the commission of the offence.
   
2. The acts were repeated (3 occasions).
   
3. There is a breach of trust by the father on the daughter.
   
4. The effect on the victim girl where her father caused her fear.
   

I take these aggravating factors into account. In sentencing the Defendant, the starting point of 2 years of imprisonment must be increased to 4 years to reflect these aggravations.

The following mitigating factors were put in favour of the Defendant:

1. Prior good character of the Defendant;

2. Plea guilty in the first opportunity provided to him;

3. The Defendant is remorseful for causing harm to his young daughter;

4. He had performed a custom ceremony under s.119 of Criminal Procedure Code;

5. The Defendant’s relative is elderly age;

6. There were no injuries occasions to the victim.

I assess the aggravating factors and balanced them with the mitigating ones, I arrive at 2 years 6 months.

I sentence the Defendant, Tom Tungoro, to 2 years and 6 months less 2 months already spent in prison.

After appropriate deductions, the Defendant is to serve a term of 2 years and 4 months imprisonment with immediate effect.

Dated at Port-Vila this 23^rd day of November 2005

BY THE COURT

Vincent LUNABEK
Chief Justice