republic of vanuatu

the
PENAL CODE AMENDMENT ACT
NO. 17 oF 2003

Arrangement of Sections

1.	Amendments
2.	Commencement

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republic of vanuatu

Assent: 1st December, 2003.
Commencement: 15th December, 2003.

the
PENAL CODE AMENDMENT ACT
NO. 17 oF 2003

An Act to amend the Penal Code [CAP. 135]

Be it enacted by the President and Parliament as follows-

1	Amendments

The Penal Code [CAP. 135] is amended as set out in the Schedule.

2	Commencement

This Act commences on the day on which it is published in the Gazette.

schedule

amendments of the PENAL CODE [CAP. 135]

1	After Section 73

Insert
"Terrorism
73A	Interpretation

counter terrorism convention means a convention prescribed by order made by the Prime Minister.

terrorist act means an act or omission that:

(a)	constitutes an offence within the scope of a counter terrorism convention; or
(b)	is mentioned in section 73B.

73B	Terrorist act

(1)	The act or omission:

(a)	is an act or omission that:

(i)	involves serious bodily harm to a person; or
(ii)	involves serious damage to property; or
(iii)	endangers a person's life; or
(iv)	creates a serious risk to the health or safety of the public or a section of the public; or
(v)	involves the use of firearms or explosives; or
(vi)	involves releasing into the environment or distributing or exposing the public to any dangerous, hazardous, radioactive or harmful substance, toxic chemical, microbial or other biological agent or toxin; or
(vii)	is designed or intended to disrupt any computer system or the provision of services directly related to communications infrastructure, banking, financial services, utilities, transportation or other essential infrastructure; or 
(viii)	is designed or intended to disrupt the provision of essential emergency services such as police, civil defence or medical services; or
(ix)	involves prejudice to national security or public safety; and 

(b)	is intended, or by its nature and context, may reasonably be regarded as being intended to:

(i)	intimidate the public or a section of the public; or
(ii)	compel a government or an international organisation to do, or refrain from doing, any act; and 

(c)	is made for the purpose of advancing a political, ideological or religious cause.

(2)	However, an act is not a terrorist act if:

(a)	it is committed as part of an advocacy, protest, demonstration, dissent  or industrial action and is not intended to result in any harm mentioned in subparagraph (1)(a)(i), (ii), (iii) or (iv); or
(b)	it occurs in a situation or armed conflict and is, at the time and in the place it occurred, in accordance with rules of international law applicable to the conflict.

73C	Terrorist act an offence

If a person:

(a)	does, or threatens to do, a terrorist act; or

(b)	does an act preparatory to or in furtherance of a terrorist act; or

(c)	omits to do anything that is reasonably necessary to prevent a terrorist act;

the person is guilty of an offence punishable on conviction by a term of imprisonment not exceeding 25 years or a fine of not more than VT 25 million, or both.".

2	Section 90

Repeal the section, substitute

"90	Rape defined

Any person who has sexual intercourse with another person:

(a)	without that person's consent; or

(b)	with that person's consent if the consent is obtained:

(i)	by force; or 
(ii)	by means of threats of intimidation of any kind; or 
(iii)	by fear of bodily harm; or 
(iv)	by means of false representation as to the nature of the act; or
(v)	in the case of a married person, by impersonating that person's husband or wife;

commits the offence of rape. The offence is complete upon penetration."

3	Section 96

Repeal the section, substitute

"96	Sexual intercourse with child under care or protection

(1)	A person must not have or attempt to have sexual intercourse with any child, not being the person's spouse, who is under the age of 18 years and who:

(a)	being the person's stepchild or foster child, is at the time of the intercourse or attempted intercourse living with the person as a member of the person's family; or

(b)	not being the person's stepchild or foster child, and not being a person living with him as the person's spouse, is at the time of the intercourse or attempted intercourse living with the person as a member of the person's family and is under the person's care or protection.

Penalty: Imprisonment for 10 years.

(2)	It is no defence to a charge under this section that the child consented."

4	Section 97

Delete "girl" wherever occurring, substitute "child".

5	Subsection 97(3)

Delete "she", substitute "the child".

6	After section 97

Insert

"97A	Aggravated sexual assault with a child

(1)	A person must not have sexual intercourse with a child under the age of 15 years in circumstances of aggravation.

Penalty: Imprisonment for life.

(2)	In this section, "circumstances of aggravation" means circumstances in which:

(a)	at the time of, or immediately before or after, the commission of the offence, the alleged offender maliciously inflicts actual bodily harm on the alleged victim or any other person who is present or nearby; or

(b)	at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument; or

(c)	the alleged offender is in the company of another person or persons; or

(d)	the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender; or

(e)	the alleged victim has a serious physical disability; or

(f)	the alleged victim has a serious intellectual disability."

7	After section 101

Insert

"101A	Definitions of "act of child prostitution" and "child" 

For the purposes of sections 101B-101C:

"act of child prostitution" means any sexual service, whether or not involving an indecent act:

(a)	that is provided by a child for the payment of money or the provision of any other material thing (whether or not it is in fact paid or provided to the child or to any other person); and

(b)	that can reasonably be considered to be aimed at the sexual arousal or sexual gratification of a person or persons other than the child, 

and includes (but is not limited to) sexual activity between persons of different sexes or the same sex, comprising sexual intercourse for payment or masturbation committed by one person on another for payment, engaged in by a child.

"child" means a person who is under the age of 18 years.

101B	Promoting or engaging in acts of child prostitution

(1)	A person must not:

(a)	by any means, cause or induce a child to participate in an act of child prostitution; or

(b)	participate as a client with a child in an act of child prostitution.

Penalty: Imprisonment for 10 years or, if the child is under the age of 14 years, to imprisonment for 14 years. 

(2)	The consent of a child is not a defence to a charge relating to an offence under this section. 

101C	Obtaining benefit from child prostitution

(1)	A person must not receive money or any other material benefit knowing that it is derived directly or indirectly from an act of child prostitution.

Penalty: Imprisonment for 10 years. 

(2)	A person is not guilty of an offence under this section if the person satisfies the court that the money or other material benefit concerned:

(a)	was received by the person for the lawful provision of goods or services; or

(b)	was paid or provided in accordance with a judgment or an order of a court or a legislative requirement.

101D	Children not to be used for pornographic purposes 

(1)	A person must not:

(a)	use a child for pornographic purposes; or

(b)	cause or procure a child to be so used; or

(c)	having the care (but not necessarily entitled by law to have the custody) of a child, consent to the child being so used or allow the child to be so used.

Penalty: Imprisonment for 5 years or, if the child is under the age of 14 years, to imprisonment for 7 years. 

(2)	For the purposes of this section, a child is used by a person for pornographic purposes if:

(a)	the child is engaged in activity of a sexual nature (for example, actual or simulated sexual intercourse or a striptease) for the purpose of the production of pornography by that person; or

(b)	the child is in the presence of another person engaged in such an activity for that purpose."

8	After section 130

Insert

"130A	Valueless cheques

A person must not obtain any chattel, money or valuable security by passing any cheque that is not paid on presentation, unless he or she proves (despite that there may have been some funds to the credit of the account on which the cheque was drawn at the time it was passed):

(a)	that he or she had reasonable grounds for believing that that cheque would be paid in full on presentation; and

(b)	that he or she had no intent to defraud.

Penalty: Imprisonment for 2 years.

130B	Obtaining money etc by deception

(1)	A person must not by any deception dishonestly obtain for himself or herself or another person any money or valuable thing or any financial advantage of any kind whatsoever.

Penalty: Imprisonment for 12 years. 

(2)	In subsection (1):

"deception" means deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including:

(a)	a deception as to the present intentions of the person using the deception or of any other person; and

(b)	an act or thing done or omitted to be done with the intention of causing:

(i)	a computer system; or

(ii)	a machine that is designed to operate by means of payment or identification,

to make a response that the person doing or omitting to do the act or thing is not authorised to cause the computer system or machine to make.

130C	Obtaining money etc by false or misleading statements

A person must not, with intent to obtain for himself or herself or another person any money or valuable thing or any financial advantage of any kind whatsoever, make or publish, or concur in making or publishing, any statement (whether or not in writing):

(a)	which he or she knows to be false or misleading in a material particular; or

(b)	which is false or misleading in a material particular and is made with reckless disregard as to whether it is true or is false or misleading in a material particular.

Penalty: Imprisonment for 12 years."

9	After section 147

Insert

"147A	Possession of child pornography

(1)	In this section:

"child pornography" means a film, publication or computer game that would on the basis that it describes or depicts, in a way that is likely to cause offence to a reasonable adult, a person (whether or not engaged in sexual activity) who is a child under 16 or who looks like a child under 16.

(2)	A person must not have in his or her possession any child pornography.

Penalty: Imprisonment for 2 years. 

(3)	Nothing in this section makes it an offence for any member or officer of a law enforcement agency to have any child pornography in his or her possession in the exercise or performance of a power, function or duty conferred or imposed on the member or officer by or under any Act or law.

(4)	It is a defence to a prosecution under this section to prove:

(a)	that the defendant did not know, or could not reasonably be expected to have known, that the film, publication or computer game concerned is or contains pornographic material involving a child under 16; or

(b)	that the person depicted in the material was of or above the age of 16 at the time when the film, computer game or publication was made, taken, produced or published. 

(5)	A court that convicts a person of an offence under this section may order that any child pornography in respect of which the offence was committed is to be destroyed or otherwise disposed of as the court thinks fit.

147B	Publishing child pornography

(1)	In this section:

"article" includes any thing:

(a)	that contains or embodies matter to be read or looked at, or

(b)	that is to be looked at, or

(c)	that is a record, or

(d)	that can be used, either alone or as one of a set, for the production or manufacture of any thing referred to in paragraphs (a), (b) or (c).

"child pornography" has the same meaning as it has in section 147A.

"publish" includes:

(a)	distribute, disseminate, circulate, deliver, exhibit (including on an internet website), lend for gain, exchange, barter, sell, offer for sale, let on hire or offer to let on hire, or

(b)	have in possession or custody, or under control, for the purpose of doing an act referred to in paragraph (a), or

(c)	print, photograph or make in any other manner (whether of the same or of a different kind or nature) for the purpose of doing such an act.

"record" means a gramophone record or a wire or tape, or a film, and any other thing of the same or of a different kind or nature, on which is recorded a sound or picture and from which, with the aid of a suitable apparatus, the sound or picture can be produced (whether or not it is in a distorted or altered form).

(2)	A person must not publish an indecent article that is child pornography.

Penalty: In the case of an individual—imprisonment for 5 years or, in the case of a corporation—20,000,000 Vatu.

(3)	A court that convicts a person of an offence under subsection (2) may order forfeiture to the Government of any computer used to publish the child pornography.

(4)	On the making of an order under subsection (3) the computer becomes the property of the Government.

(5)	Nothing in this section makes it an offence for any member or officer of a law enforcement agency to publish an indecent article in the exercise or performance of a power, function or duty conferred or imposed on the member or officer by or under any Act or law.

(6)	For the purposes of this section, an article may be indecent even though part of it is not indecent.

(7)	If a corporation contravenes, whether by act or omission, another provision of this section, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the provision if the person knowingly authorised or permitted the contravention.

(8)	A person may be proceeded against and convicted under a provision pursuant to subsection (7) whether or not the corporation has been proceeded against or been convicted under that provision.

(9)	Nothing in subsection (7) or (8) affects any liability imposed on a corporation for an offence committed by the corporation under a provision of this section."

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