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Public Prosecutor v Toara [2009] VUSC 167; Criminal Case 90 of 2007 (7 August 2009)

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

Criminal Case No. 90 of 2007

PUBLIC PROSECUTOR

-v-

TIM TOARA

Coram: Justice N. R. DAWSON

Date of Hearing: 7^th August 2009

Date of Decision: 7^th August, 2009

Counsels: Mr. G. Takau for Public Prosecutor
Mr. T. Loughman for Accused

SENTENCE

1. Mr. Toara you appear in Court today for sentencing on 3 charges of Sexual Intercourse Without Consent. I will not repeat the facts that lead to this sentencing taking place as those facts were fully recorded in the Verdict of the Court and during the course of the trial those facts were not contested, it was only the element of consent that was contested at trial.

2. Mr. Toara you have a long history of prior offending. You have at least 16 convictions on your record. They include convictions such as burglary and many other dishonesty offences. I have read the Public Prosecutor's submissions and the defence submissions and also the Probation Report that has been provided to the Court.

3. In sentencing you I need to denounce your behaviour. I also need to impose a sentence that will act as a deterrent. Rape is an appalling crime and the Courts need to impose sentences to express the public's abhorrence for these crimes and the extreme adverse effect that it has on the victims of such offending. The community are entitled to be protected from this type of offending. The case of PP v. Gideon makes it very clear that only in exceptional circumstances would such offending not result in a sentence of imprisonment and no exceptional circumstances exist in your favour with respect to this offending. Your sentence needs to reflect the gravity of your particular offending in this case and I also need to take into account the effect of your offending on the victim who is still suffering from the effects of your offending upon her.

4. There are a number of aggravating features to your offending. To begin with you invented a story full of lies and deceit to get the attention of the victim whilst the purpose of your being able to have sex with her. You then planned and carried out what was effectively an abduction of the victim for a period of approximately 24 hours. You also took her to a place she had never been to before where she had no way of getting home, at the time when night was falling and you used those circumstances to rape her.

5. Other aggravating factors are a number of your previous convictions which also involved lies and deceit and also your repeated offending against the same victim.

6. The only possible mitigating factor I can consider is that you have offered a custom ceremony but in all the circumstances this Court cannot be surprised that that offer was rejected by the victim.

7. The Probation Report notes that you appear to have a lack of insight into your behaviour and an inability to manage your sexual feelings in the appropriate manner that contributed to the offence. It also notes your tendency to shift blame onto the victim. In addition there is your lack of insight into your behaviour and your lack of motivation to address your offending behaviour and your lack of empathy for the victim and as a result you are assessed of being at the high risk reoffending and quite unsuitable for community based sentence.

8. I have to taken into account the cases are referred to me, in particular that of PP v. Ali. The appropriate starting point to sentence you would be a sentence of imprisonment of 5 years. I have then take into account the aggravating factors I have mentioned and it is appropriate to increase your sentence to a term of imprisonment of 8 years. There are no mitigating factors that would justify a decrease from that level and therefore you are convicted and sentenced to a term of imprisonment of 8 years. You have served 25 days in prison and your sentence from today will be reduced by that number of 25 days.

9. You have the right to appeal this sentence. For any appeal you must lodge a notice of appeal within 14 days of today's date.

Dated at Port Vila, this 7^th day of August, 2009

BY THE COURT

N.R. DAWSON
Judge