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Public Prosecutor v Tatangis [2021] VUSC 342; Criminal Case 2681 of 2021 (2 December 2021)

IN THE SUPREME COURT OF Criminal

THE REPUBLIC OF VANUATU Case No. 21/2681SC/CRML

(Criminal Jurisdiction)

BETWEEN: Public Prosecutor

AND: Russel Tatangis

Defendant

Date of Sentence: 2 December 2021

Before: Justice G.A. Andrée Wiltens

In Attendance: Ms B. Ngwele for the Public Prosecutor

Ms F. Kalsakau for the Defendant

SENTENCE

1. Introduction
   

1. Russel Tatangis has pleaded guilty to unlawful sexual intercourse (x 3) with a child aged between 13 and 15 years.
   

2. Facts
   

2. The complainant BS came to live with the Tatangis family on Nguna Island as her school guardians in 2021. They all lived in the same house, but slept in different rooms. .
   
3. At the time of these events, BS was 13 years old and Russel Tatangis was 25 years old.
   
4. In May 2021, BS needed to go to the toilet during the night. On her return, Mr Tatangis asked to use BS’s torch. After he had used the torch, Mr Tatangis returned it to BS and asked her to sleep in his room. BS refused, but he insisted. He placed his hands on her stomach and forced her to remove her clothes before he had sexual intercourse with her in his room. He told BS to make no noise otherwise others would hear. BS suffered bleeding and pain that continued the following day.
   
5. In June 2021, on a Tuesday night, BS was lying on her bed when Mr Tangis went to her. He shone a torch into her face and told her to follow him to his room. She refused, but he insisted. He again forced her to have sexual intercourse with him. Again he told her not to make any noise; and again it was painful for BS.
   
6. On 6 July 2021, at around 11 pm, BS woke up and needed to go to the toilet. When she returned, she found Mr Tatangis waiting for her. He made her follow him to his room. There he told her to sit on top of him, but she was scared and refused. He then held her hand and make her lie down on his bed. He then had sexual intercourse with her, before BS returned to her room.
   
7. When interviewed by the police Mr Tatangis admitted his offending and maintained that BS had consented on each occasion.
   
8. The maximum sentence for unlawful sexual intercourse with a child between 13 and 15 years old is 15 years imprisonment.
   
9. It is not accepted that BS consented to Mr Tatangis’ acts. Accordingly, there are no mitigating aspects to this offending. There are however aggravating factors as follows:
   
   • - The age differential between them;
   • - The fact that the offending took place in BS’s temporary home where she should have been able to feel safe;
   • - The lack of protection used, exposing BS to sexually transmitted disease and unwanted pregnancy;
   • - Compelling BS to make no noise;
   • - The repeat nature of the offending;
   • - The breach of trust; and
   • - The effect on the victim, being such that she ran away from school as a result of the offending.
     
10. The sentence start point is set at 6 years 6 months imprisonment, on a totality basis.
    
11. Mr Tatangis pleaded guilty at the first available opportunity. That indicated his remorse and has spared BS the need to give evidence. For the prompt pleas, the sentence start point is reduced by one-third.
    
12. Mr Tatangis is 25 years old, in a de facto relationship with a one-year old child to support. He earns his income in construction, and has previously been an RSE worker.
    
13. He has no previous criminal convictions, and claims to be remorseful.
    
14. Despite two attempts having been made, there has been no customary reconciliation ceremony as BS’s family declined to participate. Mr Tatangis has apologized for his offending to his family, his church and the wider community; and his apology was accepted.
    
15. For his personal factors the sentence start point is further reduced by 4 months.
    
16. The end sentence imposed, on each charge concurrently, is 4 years imprisonment. Mr Tatangis has spent some time in custody. Accordingly, the sentence is to run from 19 November 2021.
    
17. There is no prospect of suspending the sentence: PP v. Scott [2002] VUCA 29; PP v. Gideon [2002] VUCA 7.
    
18. All details leading to BS’s identification are permanently suppressed.
    
19. Mr Tatangis has 14 days to appeal the sentence.
    

DATED at Port Vila this 1^st day of December 2021

BY THE COURT

Justice G.A Andrée Wiltens