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Public Prosecutor v John [2021] VUSC 18; Criminal Case 2527 of 2020 (5 February 2021)

PUBLIC PROSECUTOR

V

POLLA (PAULA) JOHN

Date of Sentence: 5th day of February, 2021 at 9:00 AM

Before: Justice Oliver Saksak

In Attendance: Ms Josephine Tete for Public Prosecutor

Mr Willie Kapalu for Defendant

SENTENCE

1. Paula John pleaded guilty to one count of sexual intercourse without consent- sections 90 and 91 and to one count of threats to kill.
   
2. On 19^th July 2020 on Tanna Island the defendant had forced sexual intercourse with the complainant. The complainant and her cousin were walking home after church and me the defendant on the way. He approached them telling them he would rape the complainant. They were frightened and held onto each other’s hands.
   
3. The defendant grabbed the complainant’s had and pulled her towards the creek. Her cousin had left her by now and ran away. The complainant pleaded with her cousin to tell her aunt about what the defendant was doing to her.
4. The defendant pulled the complainant to a nearby bush. Her aunt was alerted and was calling for the complainant by them. When the defendant heard the aunt calling he threatened the complainant not to answer or scream as he would kill her. He then squeezed her neck, pulled her further down the creek and demanded she remove her clothes. She refused. He then grabbed a stone intending to throw it at her. The complainant the complied by removing her clothes. He forced her to the ground, placed her legs on his shoulders and tried to penetrate her vagina. His penis was too big and so he spat on his hand and lubricated hi penis. He then penetrated the complainant’s vagina who felt pain and was crying. Blood flowed from the complainant’s vagina. Later he forced her to stand up and forced her to kiss him. He even forced her to suck on his penis but she refused. Then he kissed her again and then left her.
   
5. The complainant made a report to the police at Isangel at 15:25pm on the same date. A medical examination and report was obtained at 5:45pm that day recording bruises near the labia majora. Vaginal orifice was noted. There was hymen. There was small bleeding inside but no semen seen. The areas around the vagina looked “red” or inflamed. The result was that she was sexually assaulted.
   
6. This was serious sexual assault accompanied by threats to kill with a stone from a 15 year old offender. These offendings warrant custodial sentences but for the age for the defendant.
   
7. I note from the submissions that a person under the age of 16 years is not to be sentenced to imprisonment to section 54 of the Penal Code Act.
   
8. I also note Article 37 of the convention of the Rights of the Child (Ratification) Act to which Vanuatu is a party.
   
9. Applying these provisions a sentence of imprisonment will not be imposed. But section 54 (1) of the Act permits the imposing of other forms of punishment.
   
10. This is necessary so as to mark the gravity of the defendant’s offending, to mark public disapproval, to deter the defendant and other like-minded offenders, to protect the vulnerable and to punish the defendant adequately.
    
11. To serve these purposes I therefore convict the defendant of sexual intercourse without consent and for threats to kill. I therefore sentence the defendant to Community service of 150 hours (section 58N) coupled with supervision for his rehabilitation ( section 58F) for a period of 2 years from the date hereof.
    
12. These sentences will be administered by Corrections and the Probation Services.
    
13. The defendant has a right of appeal against this sentence within 14 days if he does not agree with it.
    

DATED at Port Vila this 5^th day of February, 2021.

BY THE COURT

...........................

Oliver Saksak

Judge