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Public Prosecutor v Bulemis [2005] VUSC 16; Criminal Case 004 of 2005 (31 March 2005)

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

Criminal Case No. 04 of 2005

PUBLIC PROSECUTOR

–v-

PETRO BULEMIS

Coram: Justice Treston

Mr. Mirou for Public Prosecutor
Mr. Bartel for Accused

SENTENCE

Mr. Petro Bulemis you appear for sentence today on two charges. Each of the charges carries with it a maximum potential penalty of ten years imprisonment. The first charge is attempted sexual intercourse with a child under your care and protection and the second charge is indecent assault.

These incidents occurred over a prolonged period as set out in the summary. You had been living in a de facto relationship with the complaint's mother so you were her stepfather. The relationship started in or about the year 2000. Sometime in the year 2003 you assaulted your partner, who took flight and went back to Tanna. You were left with the victim and her small sister, who was from the relationship between you and your partner.

In relation to count one the attempted sexual intercourse with a child under care and custody, on one night, you asked the victim and her small sister to sleep on the big bed with you. When the younger child fell asleep, you told the victim to remove her trousers and panties but she refused. You then removed those articles of her clothing and removed your own clothing so that you were each naked. You proceeded to open her legs while she lay on her back and you pushed your fingers into her vagina, causing her pain. You then proceeded to lie on top of her and tried to insert your penis into her vagina but were unsuccessful as her vagina was too small. You continued to rub your penis on her vaginal opening until you ejaculated. You threaten to kill the victim if she reported the matter to her mother.

During year 2003 and 2004, you indecently assaulted the victim in accordance with the summary, the details of which are set out therein. In the gardens, you would touch and fondle her breasts, in the house you would expose your genitals to her and tell her to hold your penis and fondle and rub it. You would again push your fingers into her vagina from time to time during that period. The summary says that you treated her somewhat like a wife rather than anything else and you even said that you would marry her when she grew up.

The victim was only aged either eleven or twelve years during the period of these offences and indignities. The matter was eventually reported to the police in October last year and matters have now been brought to Court and you have pleaded guilty to the charges.

The Prosecutor has assisted me in providing a list of your previous convictions and has provided various authorities to me that would indicate, in his submission, that an appropriate sentence for count one is five to seven years imprisonment. In relation to count two a sentence of seven years imprisonment is submitted as being appropriate to deter other offenders.

Your lawyers advise me that you are forty years of age. You have pleaded guilty which demonstrates, it is submitted, your remorse and contrition. It is submitted that the matter developed when your wife left and you then turned your attentions to the victim. While it is accepted that you are no stranger to trouble it is submitted that this must be the last time you offend because future convictions could inevitably result in an incarceration for longer periods of time. The facts are accepted, it is submitted, and it is also accepted that imprisonment is an inevitable consequence of your actions. You have endeavoured to effect a custom settlement but that is not taken place. You have, of course, been given time to do that by this Court which has adjourned the matter from time to time to allow that to take place. It is submitted by your lawyer that counselling by way of assistance to you for the future would be helpful and he has requested the Court to take this into account by way of rehabilitation.

While the Prosecutor submitted to me that the terms of imprisonment should be cumulative, it is submitted on your behalf that any terms of imprisonment should be concurrent and that you should be given significant benefits because of your plea and the avoidance of putting the victim through the stress and trauma of giving evidence.

When I approach the question of sentencing, I must have regard to the purpose of sentencing which includes accountability for the harm done not only to the victim but also to the community. I must instil in you a sense of responsibility for what has occurred on this occasion and as I will say shortly, this is not the first time that similar offences have been committed. I must denounce your conduct and deter others as well as you from this sort of offending which seems to be all to prevalent in our society at the moment. I must protect the community but I agree with your lawyer that I must not increase the sentence purely for protection of the community. Your rehabilitation of course must be a consideration but unfortunately I do not think that services are available in this jurisdiction to attend to that in a meaningful fashion. It is the least restrictive outcome that I must impose when sentencing you.

Sentencing in general involves a consideration of balancing aggravating and mitigating factors, the aggravating features that I have identified in your case are these: -

First, there was a threatened use of violence, when you said that you would kill the victim if she told anyone about what had occurred. Second, there was a significant breach of trust between you and the victim in that you were her stepfather. Third there was the vulnerability of the victim by virtue of her age of eleven and twelve years. Fourth was the fact that you have previously appeared before the Court. And your list of convictions between 1984 and the year 2000 is significant indeed. On my examination of the list and analysis of it there are sixty-four previous convictions during that period. Most significant are these. In 1992 there were three separate convictions for doing indecent act in a public place. In 1994 there was a similar conviction for an indecent act in a public place and later in that year there was a conviction for attempted rape for which you were sentenced to ten years imprisonment. So you are fast turning into a recidivist not only in relation to criminal matter generally but particularly in relation to sexual matters and that is demonstrated by your list of previous conviction. Fifth on the aggravating features list is the fact that this was a continuing type of offence over a period of two years or so. The charges, particularly in relation to the indecent assault matters are representative and the fact that the offending occurred on numerous occasions is a severe aggravating factor. Sixth is the fact that the offence occurred within what should had been the security of a home where the victim should have been safe. Seventh is the fact that there was a significant disparity between your age of forty years and her age of eleven and twelve years. You exerted your influence over this victim to obtain sexual gratification in a fashion that I find intolerable and unacceptable.

As far as far as matter of mitigation are concerned, I take into account of course your plea of guilty, and the fact that you endeavoured to affect a custom settlement but there is little else that I can say in your favour and I think with the greatest respect your situation of remorse is somewhat self-serving and that is particularly so because of your predilection for offending over the years.

The aggravating features so clearly outweigh the mitigating ones in your case that there is really no contest that the matter is made much more serious for you.

The Courts have in this country been at pain to stress their disapproval and repugnance for this sort of behaviour and you realistically accept through your counsel that anything other than a term of imprisonment would inappropriate and inadequate. As the Court of Appeal said in the Public Prosecutor v Gideon [2002] VUCA 7 Criminal Appeal Case 03 of 2001 men must learn that they cannot obtain sexual gratification at the expense of the weak and vulnerable and the Court said that men who take advantage sexually of young people forfeit the right to remain in the community.

As the Court of Appeal said in Peter Talivo v Public Prosecutor [1996] VUCA 2 Criminal Appeal Case 2 of 1996: -

"All children are entitled to be protected by adults. Children must be safe in their own home. When men who have the care of children abuse that right, we agree with the Chief Justice that they forfeit the right to remain within the community. In this case the custom dealing with matter could not and of itself be sufficient to deal with it. We cannot see how on any basis it could be said that the sentence imposed was manifestly excessive. What this man did was deplorable conduct. The Court had an obligation to mark the community's disapproval of it in a serious way"

In that case a term of imprisonment of five years was confirmed. Your case is made somewhat worse by your previous convictions that I have already referred to. The Court also notes the continuing nature of this offending and is of the view that any sentence today imposed should be cumulative and not concurrent.

I agree that the appropriate sentences for you as a starting point is seven years imprisonment on each count. I immediately give you credit for your plea of guilty in reducing that sentence by one-third to leave 9 years and 5 months imprisonment. From that term I deduct a period of a further two months for the time you have been in custody.

I am not persuaded that, in the circumstances, any further reduction should be made for your abortive attempt for custom settlement. That leaves today a finite sentence for you of 9 years and 3 months imprisonment.

The effect of the victim will not doubt be with her for longer than that period and is likely to be a life long affliction for her. I trust that you will think about that while you serve your sentence.

You have 14 days in which to appeal that sentence.

Dated AT PORT VILA, this 31st day of March 2005

BY THE COURT

P. I. TRESTON
Judge