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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
HELD AT LUGANVILLE/SANTO
(Criminal Jurisdiction)
Criminal Jurisdiction 76 of 1997
(File No.10/97)
PUBLIC PROSECUTOR
-VS-
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TECI TOVON
ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Coram: Mr Justicver A Saksak Cynthia Thomas - Clerk
lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Counsel: Mr Willie Daniel - for Public Prosecutor
Mr Hillary Toa - for the Defendant
p class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> SENTENCE
This man appeared before the Court on 18th Augustged with one count of indecent assault contrary to se section 98(2) of the Penal Code Act [CAP.135].
It is alleged agathe Defendant that on or about 7th July 1996 at Avunatari, Malo Island he indecindecently assaulted one Votari Moliwari by inserting his finger into her vagina rupturing her as the victim was a virgin. The Defendant pleaded guilty to the charge. ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The Prosecution referred to the evidence in the statements of -
(b) &nbbsp;& Rsp; Mota Moliwaheiwahe victim's mother maer made a statement in which she says that Votari is handicapped. She confirms seeing blood on Votarress.confi bathing her in water and taking heng her to r to the dthe dispensary for examination. She confirms her age at 43 years and never married due to being handicap.
(d) &nbbsp;& Nsp;e Nrse Norahmarahmade a written reporteport dated 8th July 1996. She confirms that Votari is handicapped. She examined the victim some 4 hlatersaw alows:-
(i) &nnsp;&&nsp;; vspinalgtepantepan>
(bsp;& p;   pai; painful nful on touchtouchinuching
(iii) ; snelliou ar the the area
(bsp;& &nbp; &nsp; &bsp; nbsck back pain painspan>
(v) &nnsp;& bsp;d coos inothe the vagina
She treated her and prescribed for hercilin, panadol and amoxycilxycillin tablets.
(e) &nnbsp;  p; spp; Alick G,orgeicPolice e Officer who interviewed the Defendant says in his statement that the Defendant admitted dealndecewith i. 1">
p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The Defendant made a statement under caution tot he police on 3rd September 1997 admitting indecently assaulting Votari. His only reason is that he was driven by his natural desires and after he discovered that the victim's sexual organ was not normal he did not have sexual intercourse with her. Instead he inserted his finger into her vagina.
On this evidence and on the Defendant's own admission the Prosecution has shown beyond reasonable doubt that the Defendant committed the offence of indecent assault.
In mitigation Mr Hillary Toa pleaded for leniency on beha the Defendant. He told the Court that the man was a as a married man born in 1941. They have no children. His wife is diabetes and has undergone some serious treatment. She has lost two of her toes as a result. She spends most of her time in hospital. At the date of hearing she was in hospital and her husband the defendant has been alongside her all the time. Indeed she was in the Court room and she confirmed all that Mr Toa said.
The Defendant is the only bread-r for himself and his wife. They own two water tanks in then the village which they allow everyone to use. Indeed it was said that the victim and her mother who is a widow are beneficiary also of the Defendant's water. It was said that the victim had made some gesture to the Defendant, suggesting she was interested in him. This provoked the defendant's desire to have sex with the victim. He gave consistent facts about insertion of finger into her and admitting seeing blood.
As regards the medical report Mr Toa submitted that it shows no stitches was done probably negativing the claim for vaginal tear. Further he submitted that as the Report shows that the victim is "normal now" that there was no resulting cause. He told the court that the Defendant had paid a fine of vt500 tot he victim in July 1998. He told the court that the Defendant was truly sorry for his actions and undertook not to repeat those actions. The Defendant had no previous convictions. He cooperated with the Police. Mr Toa submitted that as an old man the Defendant was not a threat to society and urged the court to discharge him with a serious warning.
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In sentencing the Defendant I tooo account all that was said on his behalf in mitigation. I n. I do not accept the submission that as an old man this man no threat to society.
I am of the view that if he saw fit to do what he did o a woman who was a handicap, there can be no guarantee that he could do the same to a normal female. Indeed it would be true to say that old men in similar circumstances are prove to fall as easy victims to their sexual desires or drive. (See Public Prosecutor -v- Salili)
I accept however that the court should be lenient as the woman is fully grown. There is no physical permanent injury. The Defendant has to look after and care for his sick wife who spends most of her time in hospital in Luganville.
For those reasons I sentence the Defendant to 1 year imprisonment suspended for a period of 3 years.
DATED at Lugan this 18th day of August, 1998.
/p>
OLIVER A SAKSAK
Judge of the Supreme Court
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URL: http://www.paclii.org/vu/cases/VUSC/1998/39.html