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Public Prosecutor v Carlo [2009] VUSC 41; Criminal Case 29 of 2006 (26 May 2009)

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

Criminal Case No. 29 of 2006

PUBLIC PROSECUTOR

V

MOISE ISHMAEL CARLO

Coram: Justice N. R. DAWSON

Date of Sentencing: 26th May, 2009

Counsel: Mr. A. Obed for Public Prosecutor
Mr. H. Vira for Accused

SENTENCE

1. Mr. Carlo you appear in Court today for sentencing on the charge of Indecent Assault and 2 charges of Unlawful Sexual Intercourse.
   
2. At the time of these offences you were 21 years of age and the victim was 11 years of age. You are the step brother of the victim in this matter. In 2003 when the offences took place you showed the victim pictures of naked men and women having sex. You had shown those pictures to the victim on a number of occasions. You showed her those pictures when both her parents were away at work. After showing her the pictures you told the victim that you both should do exactly the same thing as what was in the pictures. On the first occasion of showing her those pictures you told the victim to remove her panties. She did as you told her. You then started touching and licking the plaintiffs private parts and you continued to do that on a number of other occasions. In 2006 you had sexual intercourse with the victim after school when the mother and father were still at work. At that time you both went into a tool room and you started sucking the plaintiffs breast and vagina and then had sexual intercourse.
   
3. I note that you have 2 previous convictions but they are of a relatively minor nature that resulted in fines and are not relevant to today’s sentencing.
   
4. I have read the probation report that was prepared for your sentencing and I have also received and read the prosecutions submissions and the defence submissions.
   
5. In sentencing you I need to hold you accountable for the harm that you have caused to the victim. I need to take into account the interests of the victim in this offending. The paramount factors of sentencing are those of denunciation and deterrence. You need to know and others also need to know that offending of this sort will result in heavy sentences being handed down. That is because the public are entitled to be protected from this type of offending and in particular young girls must be protected. I need to take into account the effect your offending has had on the victim. I note from the probation report that she now lives with her father but she has left school because her friends and class mates make fun of her and she says that she is even now not treated with respect. She says that because of this offending her life has been messed up and sometimes she just cannot co-op with it. So years later you are responsible for what is still happening to that victim.
   
6. There are aggravating features to your offending. The first is the abuse of trust involved in that you lived in the same house with the victim and offended when the parents were absent from the house at work. The defendant was very vulnerable to your offending as she was only 11 years of age and was your step sister. A further aggravating feature is that this offending continued over some period of time.
   
7. In mitigation you entered a guilty pleas at an early stage and you conducted a reconciliation ceremony with some compensation involved. I note the victim herself did not attend that ceremony. It is also being submitted that there has been a 2 year delay in sentencing because of records having being burned down in the Court House fire and that you have incurred some prejudice to that delay. I also note that you have lived lawfully since that time and that you have not been before the Courts again.
   
8. In sentencing you I take into account previous decisions of this Court. I refer particularly to that of PP v. Lionel Damasing, Criminal Case 41 of 2006 where Justice Tuohy said "women and even more so young girls are entitled to be protected from sexual abuse and that means that in other than the rarest cases there must be sentence of imprisonment for sexual offending particularly against young girls." In the case of the PP v. George Dick [2004] Criminal Case 1 of 2004, it was said in that case " a custodial sentence is necessary for a variety of reasons. The firstly to mark the gravity of the offence, secondly to emphasize public disapproval. Thirdly to serve as a warning to others. Fourthly to punish the offender and finally to protect the children and in this case the child girl." Those remarks are relevant to your offending and to sentencing you today.
   
9. In my view the appropriate starting point to sentence you would be a sentence of imprisonment of 4 years. After taking the aggravating features into account that should be increased to a term of imprisonment of 6 years for each of the charges of unlawful sexual intercourse. I then take into account the mitigating factors I have mentioned and on each charge of unlawful sexual intercourse you are convicted and sentenced to 4 years imprisonment to be served concurrently. I do take into account that there has been a delay in sentencing you which is not entirely of your making. I would have reduced your sentence of imprisonment by 4 months but you have failed to appear in this Court when you ought to have been here and you are only here today because a Warrant to Arrest has been executed upon you. Because of that I am only prepared to reduce your sentence by 2 months. You are therefore convicted and sentenced to 3 years and 10 months on each of the Unlawful Sexual Intercourse charges, to be served concurrently. On the charge of Indecent Assault you are convicted and sentenced to a term of imprisonment of 2 years also to be served concurrently. I am advised that you have previously spent 4 months in prison on these matters and therefore the sentence that you will serve from today will be 3 years and 6 months.
   
10. 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 26th day of May, 2009

BY THE COURT

N. R. DAWSON
Judge