Criminal Case No.4 of 1998
File No.171/98
PUBLIC PROSECUTOR
-VS-
LITI MOLI
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Coram: Mr Justice Oliver A
Saksak
Mr William Falau - Clerk of
Court
Counsel: Mr Willie Daniel, Prosecutor for Public Prosecutor
Mr Hillary Toa for the
Defendant
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Verdict and Sentence Pronounced
Orally - 1ay of April, 1999.
JUDGEMENT
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Charge
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The Defendant, Livo Vuti Moli
of Malo island in the SANMA Province was charged for committing Incest
contrary to section
95 and for committing Rape contrary to section 91 of the
Penal Code Act.
Committal Proceedings
Tfendant was committed to
the Supreme Court in the Senior Magistrate's Court on 30th A0th April 1998. He
was remanded
in custody on that date and the Defendant has expressed his
desire to remain in custody until the Court finally determines
his guilt as
regards the allegation of rape.
Pleas
He pleaded not-guilty to the
charge of rape and guil the charge of incest before His Lordship Mr
Justice tice Vincent
Lunabek, Acting Chief Justice on 18th August 1998. He was
further remanded in custody until his trial commenced on 27th October
1998.
Trial
The Defendant stood trial
commencing on 27th October 1998. The trial was adjourned part-heard to 3rd
November, ber, 12 November,
17th November 1998 respectively, and to 6th and 7th
April 1999. Final addresses and submissions were received on 12th April
1999. Oral verdict and sentence followed the submissions.
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Brief Facts
It is alleged by the
Prosecution that on or about 26rch 1998 at Nanuku, Malo Island the
Defendant had sexd sexual intercourse
with his daughter. Further it is alleged
that the intercourse was obtained against the will of the complainant
through
threats and by fear of bodily harm.
<
Admi
The Defendant admitted having
sexual intercourse with his natural daughter Lorin but denied that it was
done against her
will or consent. His admission statement to the police was
obtained under caution dated 28th April 1998.
Evidence
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The Prosecution led evidence
from the Complainant and three other witnesses one of whom was the police
officer who arrested
the Defendant and obtained his statement under caution.
The Complainant, a girl of 20 years is the second in the Defendant's
family
of 6 children. Her mother died in or about 1996. The Defendant became ill
and claims that the left side of his
body was paralysed from his head to his
left toes. He was confined to bed most of the time and the complainant took
on
the responsibility of looking after and caring for the Defendant being
her father. The Defendant would walk with the aide of
a walking stick. The
Complainant gave evidence that the Defendant had whipped her with the stick
on numerous nights.
She gave evidence that her father had touched her
private part and her breasts and that all this stopped after she had talked
over her feelings with her dad. She gave evidence that she used to assist
her father by taking his penis and helping
him urinate into a bottle.
Following on from that, the Defendant had asked her to masturbate him on
several occasions
which eventually led to oral sex and finally sexual
intercourse. She gave evidence that the Defendant had used a knife to force
her to return to the Defendant's house one time when she left home to be
with her boyfriend by the name of Tambe. She
gave evidence that on the night
when sexual intercourse took place the Defendant took a sharp piece of iron
and held
it to her chest and asked her to sleep on the bed. She told the
Court that this made her afraid and she submitted to the Defendant
to have
sexual intercourse with her. In evidence she told the Court that the
Defendant used a syringe and inserted it
into her vagina. Further she
testified that the Defendant used a black rubber plastic which she said was
intended by
the Defendant to destroy her internal organs because she was
proud. The walking stick, the iron rod, the syringe, wire and
the black
plastic rubber were tendered into evidence as exhibits. She further
testified that on the night after she was
raped she lied to the Defendant
that she was going to the toilet. She was so terrified that she ran through
a pathway
in the bushes to her Uncle's house some four kilometres away. She
arrived at or about 1 O'clock in the early hours of the morning.
She was
crying as her uncle opened the door for her and let her in. She was in a
state of shock when she immediately
explained all that the Defendant had
done to her over a period of time and on the night she ran to her uncle and
aunt,
Antuan and Marion Livo.
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Antuan Livo anion Livo
both testified on her behalf and confirmed the time Lorin arrived, the statestate
of shock she
was in and her physical condition and what the Defendant did to
her. The Police Officer who arrested and investigated the Defendant's
case
testified about how the arrest took place and how he obtained the
Defendant's admission statement under caution.
The Defence led evidence from
three witnesses beginning with the Defendant, himself. He testified that it
was the complainant
who had tempted him to do what he did. He testified that
the complainant would dress up after bathing in his eyes in the same
room he
was lying down in. He testified that the knife he threatened Lorin with was
the ensure that Lorin return home
and not leave home to live with her
boyfriend. He testified that he used a condom because he was cautious that
he would
impregnate his daughter during intercourse. He admitted having
asked his daughter to masturbate him and also to perform oral
sex on him. He
testified that he also performed oral sex on his daughter. He explained the
reason for using the black
plastic rubber and the use of the syringe. He
testified that his daughter seemed to have interest in what he was doing to
her.
His two witnesses testified as
to his physical state in prison when the Defendanst arrived. These
wit witnesses are inmates
one serving a term of 5 years for drug offences and
the other serving a term of 15 years imprisonment for the same offence
as
the Defendant. They testified about how they both assisted the Defendant
during the period of his illness in jail
and how the Defendant has
recovered.
Oral Verdict and Sentence
pronounced on 12th April 1999
After hearing submissions from
the Prosecution and the Defence Counsel, I arrivedhe conclusion that
th the Defendant
was guilty of rape as charged and accordingly entered a
conviction against him.
As regards the charge of
incest, the Court entered a conviction against the Defendant based on his
own admission and guilty
plea. This charge is not in issue.
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In relation to rape, section 91
of the Act reads:-
Penalty: Imprisonment for
"
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Rape is defined by section 90
of the Act as follows:-
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"Any person who hasal
intercourse with a woman or a girl with her consenonsent, or with her consent if
the consent
is obtained by force or by means of threats or intimidation of
any kind, or by fear of bodily harm, or by means of false representation
as
to the nature of the act, or, in the case of a married woman by
impersonating her husband, commits an offence of rape.
The Offence is complete upon
penetration."
Onus of Proof
In this case the of proof
rests with the prosecution to prove beyond reasonable doubt that the
D Defendant committed
the offence he is charged with. Here I was satisfied
beyond reasonable doubt that the Defendant was guilty of rape as charged.
Rea/span>
(1) Inwas mpt isedes
by thby the oral evidence of the Defendant as being the truth. Parts of his
evidence were made
up and were inconsistent with the contents of his
admisstatemade e police. For instance in h in his oris oral eval evidence
he
told the court that he had to use a condom during intercourse with his
daughter because he feared he would impregnate
her. He omitted or failed to
make this known in his statement to the police. Further if that was true,
the condom would
have been recovered with the other items and tendered into
evidence as exhibit. This was not so. A further example is that
in oral
evidence the Defendant said he was tempted to have sex with his daughter
when he saw her dress up in his sight
after bathing. That is not the reason
he gave to the police in his admission statement. Further in his oral
evidence
the Defendant explained the reason for using the knife against the
complainant not being to obtain consent but to make her
go back home and to
show is disagreement at her relationship with her boyfriend called Tambe. I
was not prepared to accept
that submission from the Defence and was prepared
as I did to infer that the only reason the Defendant used the knife to
threaten Lorin to return home was because he was jealous over her. The
Defendant was jealous over her. The Defendant was
treating Lorin as his wife
and subjecting her to the sexual acts which he feared would stop if Lorin
went away to live
with Tambe. I was satisfied that the sight of that knife
by Lorin caused her to fear for her safety and that contributed to
her
submitting to the sexual abuses and advances of her father.
(2) &nbssp; &nsp; There was stro g
irantiaantial evidence that sexualexual intercourse took place on the night of
26 April
1998 against the free will of the complainant.instathe
Court asksthe Complainant had to ran foan for four four kilr kilometrometres
to her Uncle's
in the dark at 1 O'clock in the early hours of the morning? The Defendant
did not gave any satisfactory
explanation about this. Further, when the
Complainant's uncle and aunt both confirmed in oral evidence the state of
shock
and physical condition that Lorin was in that night, and her immediate
revelation of what her father did that night and over
the previous weeks,
the Court could draw only one conclusion from that, that is that Lorin was
sexually abused that night
by her father without her consent.
Further the walking stick with
which the Defendant beat the complainant, the sharp iron rod, the syringe,
the wire and
the black plastic rubber tendered as exhibits provided real
evidence that the complainant, an unmarried inexperienced girl
of 20 years
at the time of the offence would have real fear of bodily harm that she
could do nothing but submit to the
Defendant's sexual abuses.
(3) p;&nbbsp; bsp; The Defendant claims
that that at the time of committing these offence he was paralysed from head
to toes on his left side. That included his right thumb and his left eye. I
found it h it hard to accept this without a proper
medical certificate and/or
report. The Defendant has not shown that to the satisfaction of the Court
that he was too
sick to go to the toilet or to cook or do other things. If
he could not do those things then it is difficult to accept how
he could
also have sexual intercourse in the state he was in. If he was paralysed
completely one still wonders how he
managed to have an erection. No medical
opinion was sought regarding this aspect but it would have been interesting
to
find out.
One of the witnesses called on
behalf of the Defendant was Enoch, aate. He testified that when when the
Defendant first
came into jail he could not walk or do his washing. I had to
be careful to accept that evidence because he was a man who is
facing a 15
year term of imprisonment for the same offence on his daughter. He happens
to be from the same island of
Malo as the Defendant.
(a) &nnbsp; There was sexual
intercourse between a man and and a girl?
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I was satisfied on evidence
thare was.
(b) &nbbsp; &nsp; If therewwas ereth not itot it was by consent?
I was satisfied that the
complainant did not consent to the act of intercourse; or even if there was
consent, I was satisfied
on evidence that consent was obtained by force, by
means of threats or intimidation and by fear of bodily harm.
(c) & &nbssp; ssp; There was
penetration?
There can be no doubt that
there was penetration. That being so, the elements of rape were proven by
the Prosecution to
the required standard and therefore I found the Defendant
guilty of rape and convicted him accordingly.
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Sentence
Before sentencing the Defendant
I heard Mr Toa in mitin on behalf of the Defendant. He told the court
that that the Defendant
had been reformed and had made a total re-commitment to
Jesus Christ in jail. That he is a father of 6 children, one of whom
is
married, and 3 of whom are still at school. That these children are
scattered with families and relatives. That the
Defendant was concerned
about finding school fees for his son to attend a school at Hog Harbour.
That the reason for
doing what he did was due to the loss of his late wife
and his illness. That he was truly sorry and undertook that he would
not
repeat what he did in the future. That the Court should be lenient on the
Defendant as he has suffered enough through
sickness and through the loss of
his late wife and now his daughter Lorin. That the court should impose a
concurrent
sentence for incest and rape for a total of three years
imprisonment.
Mr Willie Daniel opposed the
concurrent sentence submitting that both offences serious and that both
offences are
becoming all too common in Vanuatu today. That the Court should
not be seen to be lenient as that would encourage possible
offenders to
continue to do these acts.
Having considered those
suions, I concluded that I should award consecutive sentencesences to show
the seriousness of
these offences. Therefore for the charge of incest, I
sentenced the Defendant to prison for 16 months. I ordered that the 11
months he had spent in jail be deducted from this period. That means the
Defendant has only about 4 months to serve in
prison.
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For the chargeape I
sentenced that Defendant to 4 years imprisonment but I ordered that this be
e
suspended for a period
of 3 years under the provisions of the suspension of
sentences Act [CAP.67].
DATED at Luganville this 13th
day of Apr999.
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BY THE COURT
OLIVER A.SAKSAK
Judge
