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

Criminal Case No.11 of 2006

PUBLIC PROSECUTOR

–v-

HARRY PAKOA

Coram: Justice Treston

Mr. Tevi for Public Prosecutor
Mr. Loughman for Defendant

Date of sentencing: 10 April 2006

SENTENCE

Mr. Pakoa you today appear for sentence on 6 counts, 1 of rape and 5 of unlawful sexual intercourse. The maximum potential sentences for these matters are serious. For the offence for rape the law provides that the maximum sentence is life imprisonment and for the unlawful sexual intercourse 14 years imprisonment on each charge because of the age of the victim. The victim was only 12 years old at the time of the offences and lived with her parents on the way to Erakor village. She and her parents are close neighbours of yours and you are a married man age 30 with 2 children. Because her parents couldn't afford to pay for her school fees, she generally stays at home. In September 2005, you tried to persuade her to have sexual intercourse with you and asked her to follow you to the bush and you offered to give her money but she refused. On 10 October 2005, she went to the bush to pick some plants. You offered to give her VT2,000 if she followed you. She saw the money and ran to get it but you held her tightly and told her to remove her lower clothing. She refused but you removed her trousers and pants and make her lie down. You started to kiss her and pushed your finger into her vagina which caused her pain. She tried to remove your fingers but couldn't do so. You went on to have oral sex with her and finally raped her. You also showed her some pictures of naked people before the intercourse took place. She was bleeding as a result of that intercourse because she had been a virgin and she did not tell anyone about her experience. You then had sexual intercourse with her on the 5 other occasions that have been referred to. She reported what had happened on 14 November 2005. On being interviewed you admitted what had happened.

On the Public Prosecutor's behalf it was submitted to me that I should treat this matter seriously. Reference was made to the aggravating features which had been referred to in the written submissions. I am referred to cases such as the Public Prosecutor v Ali August [2000] VUSC 72; Criminal Case No. 14 of 2000 and Public Prosecutor v Kevin Gideon [2002] VUCA 7; Criminal Appeal Case No. 3 of 2001. The Prosecution accepted that there should be allowance for your pleas of guilty and for the custom settlement which has taken place.

On your behalf I was advised of mitigating factors that I ought to take into account. I was given details of your background of being, as I have said, 30 years of age and living in a de-facto relationship with 2 children. They are young being 1 year old and 3 years old. You have a job at the bakery and you earned VT20,000 a month. Your de-facto partner is unemployed and she and the children rely on you for financial support. You attend church and want to become a pastor, you are a first time offender and you now understand your wrongdoing. You say that when you and your de-facto wife quarrelled you would be sent out from home and that caused you look for company with the young victim.

I refer first of all to the Ali August case that I have given the reference for earlier. The Chief Justice in that case said that the offence of rape is always a serious crime. Other than in wholly exceptional circumstances rape calls for an immediate custodial sentence and the Chief Justice said that is first of all to mark the gravity of the offence. Secondly to emphasis public disapproval. Thirdly to serve as a warning to others. Fourthly to punish the offender, and last to protect women. The Chief Justice said that a starting point which has been referred to by your lawyer for a contested case should be 5 years imprisonment. Certainly an allowance should be made for the fact that is not a contested case but the Chief Justice went on to refer to certain matters which can aggravate a starting point. They include violence used over and above the force necessary to commit rape and that is the case here where you held the girl tightly and took her clothing off despite her objection. Again in the rape she was subject to further sexual indignities and perversions such as digital penetration and oral sex and finally she was very young. The Court said that whether there are aggravating features such as these, the sentence should be substantially higher than the figure used as a starting point. The Chief Justice acknowledged that for a guilty plea the sentence should be reduced by one-third or so depending on the circumstances. Again in the Gideon case that I have referred to the Court acknowledged that there should be acknowledgement for a customary settlement under section 119 of the Criminal Procedure Code but in that case the Court also said that children must be protected and any suggestion that a 12 year old had encouraged or initiated sexual intimacy was rejected. If a 12 year old is acting foolishly she needs protection from adults and adults should not take advantage of her immaturity. In that case the Court of Appeal said that men who take advantage sexually of young people forfeit the right to remain in the community.

I must in sentencing take account of the harm to the victim and while the report from her indicates that there is no apparent great effect on her that may manifest itself later of course. Fortunately for the moment she is not afraid and sleeps well but she stresses that she has lost her virginity at a very young age because of your actions.

I must denounce your conduct and deter other likeminded offenders from this sort of offending. I must deter you too and protect the victim and the community generally.

On the aggravating side of things there was, as I have said, the actual use of force and violence to have your way with the young victim. There was the vulnerability of the victim because of her age of 12 years. There was the disparity of age between you at 30 years of age and she at only 12. There was the fact that was repetitive offending because of the number of charges involved. There were also the added elements of showing her indecent pictures and attempted to bribe her to accept your advances.

On the mitigating side of things there was, of course, your plea of guilty that necessarily saved the victim from the trauma of having to give evidence in Court in front of strangers. That demonstrates to an extent your contrition and remorse as expressed by your lawyer and of course, there was your previous good behaviour because you are a first offender.

However, this was a particularly serious number of offences and particularly serious incidents as have been demonstrated by the summary. Overall, it is my view that, bearing in mind the starting points I have referred to and the allowances which I will give, this series of offending, because of the life imprisonment for rape and the 14 years maximum for unlawful sexual intercourse, the penalty should be 10 years imprisonment. I deal with it in a global fashion like that but finally I will deal with you as follows. I give you a reduction as I have indicated on the principles already referred to for your plea of guilty, for the customary settlement and for the time you have already spent in custody. The final sentence I reach in relation to the rape charge is one of 6 years and 9 months imprisonment, on the unlawful sexual intercourse charges you are sentence to 2 years imprisonment on each of them but those 5 sentences of 2 years imprisonment will be concurrent with each other and with the sentence for rape, so the overall sentence I today impose for these matters is 6 years and 9 months imprisonment. As I say, to an extent, that is a global figure recognizing the elements and I have noted that in the concurrent aspect of sentence.

You have 14 days to appeal this sentence if you are dissatisfied with it.

Dated AT PORT VILA on 10 April 2006

BY THE COURT

P. I. TRESTON
Judge