Thomas v Public Prosecutor
REASONS FOR REFUSING BAIL
Introduction
1. On 12 October 2026, the defendant entered pleas of guilty to one charge of attempted rape and one charge of rape. Sentencing is to take place on 25 November 2026.
2. The defendant is currently in custody but seeks bail pending sentence. He proposes to reside in Santo with a relative, Alick Terry, who is a Member of Parliament. Significant emphasis is placed on the fact that at the time of the offending, the defendant was aged 17 years and so is young. I accept that the proposed arrangements are suitable, as is the proposed surety Mr Terry. I also accept the risk of interference with the victim, and reoffending is mitigated because of the guilty pleas and that the victim lives in Malekula.
3. The prosecutor, Mr Liu, opposes bail, on the basis that a custodial sentence for this offending is likely, notwithstanding the defendant’s relative youth.
Result
4. After hearing submissions from counsel, I declined to grant bail pending sentence. I said I would give written reasons. These are my reasons.
The facts
5. The victim was aged 14 years at the time of the offending on 30 July 2026. The defendant was aged 17 years. The victim was with her parents during the Independence Day celebrations. The defendant, who was intoxicated, asked the victim to go and see him. Eventually she did so.
6. The defendant pulled the victim into a bush and forced her to remove her clothes. She refused. The defendant removed her clothes and underwear and attempted to insert his penis into the victim’s vagina. He attempted penetration once but was unable to fully penetrate her. The victim did not consent to this sexual activity.
7. The defendant then put his penis into the victim’s mouth. She did not want this and tried to cover her mouth with her hand. The defendant pulled the victim’s hand away and again forced his penis into her mouth. The defendant forced the victim to perform oral sex on him and told her to “suck my penis”.
Applicable principles
8. Bail is to be considered under s 60 of the Criminal Procedure Code [Cap 136] (“CPC”), because the charge of rape carries a penalty of life imprisonment. Section 60 (3) is an exception to s 60 (1) but gives no guidance as to the applicable principles.
9. Section 60 (1) provides that a person charged with an offence with a penalty of life imprisonment is ineligible to be granted bail. However, s 60 (3) provides a gateway for bail in such a case.
10. In Public Prosecutor v Whitford [2006] VUSC 36 the Court said that for the exception in s 60(3) to apply there must be special or good reasons on which the Court is satisfied to grant bail and made pertinent observations about what evidence is required when s 60(3) applies (at 12):
“When an application is made under Section 60 of the Criminal Procedure Code for someone who has been charged with an offence carrying a maximum term of life imprisonment, it is in my view essential that the applicant comes with good evidence to persuade the Court that his situation is special or such that the Court has to invoke Subsection 3. It is trite law that what is said from the bar table (said by lawyers) is not evidence to support a proposition or an application that is before the Court. It is duty of the applicant to come to Court with all relevant evidence to support his application or proposition.”
11. Consistent with Whitford, I consider that for the exception in s 60(3) to apply, there must be special or good reasons for bail to be granted, when s 60(1) and (3) are read together. The starting point is that a person accused of an offence punishable by life imprisonment is ineligible for bail. The rationale for s 60(1) must presumably be to reflect Parliament’s intention that liberty of an individual is appropriately curtailed when alleged offending falls into the most serious category. If immutable though, it could be thought to be draconian and inconsistent with Article 5 of the Constitution and in particular, the presumption of innocence.
12. If s 60(3) is interpreted from its text and in light of its purpose, bail can be granted by the Supreme Court, when a person is accused of an offence punishable by life imprisonment. It involves the exercise of discretion. It must reflect Parliament’s intention to ensure there is an exception so that bail can be granted in such circumstances. Otherwise, issues of unconstitutionality might arise. I consider then that the starting point in considering whether to grant bail where s 60(3) applies must be the ineligibility for bail under s 60(1). That suggests, consistent with Whitford, that there is high bar or hurdle for an applicant to overcome; that is to say special or good reasons.
13. There are a number of factors which inform whether bail should be granted. They are distilled from various cases, including;
a. Public Prosecutor v Festa [2003] VUSC 65.
b. Leo v Public Prosecutor [2013] VUSC 203.
c. Manipen v Public Prosecutor [2013] VUSC 177.
d. Reno v Public Prosecutor [2015] VUSC 180.
e. Public Prosecutor v William [2019] VUC 10.
14. The primary factors relating to bail are the risks of:
1. failing to appear.
2. interference with witnesses or evidence. The risk of interference does not relate only to the risk of interference with the investigation; Public Prosecutor v Winslett [2010] VUSC and Public Prosecutor v William [2019] VUSC 10.
3. offending if bail is granted.
15. However, different considerations apply once a defendant has pleaded guilty. The defendant is no longer entitled to the presumption of innocence, and the key issue is likely sentencing outcome, and not the usual considerations as outlined above. If a defendant is likely to be sentenced to a full-time custodial sentence, that counts against bail pending sentence. If, however, it is unlikely that the defendant will be sentenced to a term of imprisonment, then that counts against an ongoing custodial remand.
Should bail pending sentence be granted?
16. Because s 60 of the CPC applies, the defendant is required to show good or special reasons for a grant of bail. Ms Sarisets was unable to point to any special reasons for a grant of bail. While youth is relevant, in and of itself, it does not amount to a special reason in this case, as the defendant is aged 17 years. If for example, he was 15 years, that would be a special reason, given the presumption against imprisonment for offenders under 16 years: See s 54 of the Penal Code.
17. In terms of likely sentencing outcome, the starting point is that in cases of sexual offending, suspension of sentence will only contemplated in extreme of exceptional cases: See Public Prosecutor v Gideon [2002] VUCA 7.
18. The Court of Appeal has confirmed that the Gideon principles apply even when a defendant is young: Tulili v Public Prosecutor [2024] VUCA 54 and Tartar v Public Prosecutor [2026] VUCA 19. As the Court of Appeal said in Tartar:
53. “This Court has said in a line of authority commencing with Public Prosecutor v Gideon [2002] VUCA 7 that:
“it will only be in the most extreme cases that suspension could ever be contemplated in the case of sexual abuse... Men must learn that they cannot obtain sexual gratification at the expense of the weak and vulnerable. What occurred as a tragedy for all involved. Men who take advantage sexually of young people forfeit their right to remain in the community”.
54. This was reiterated in Public Prosecutor v Scott [2002] VUCA 29, when this Court set aside the suspension of a sentence imposed for rape and said:
“men must learn that they cannot obtain sexual gratification at the expense of the weak and vulnerable. What occurred as a tragedy for all involved but men who take advantage sexually of women forfeit the right to remain in the community
....
The time has long come when all men must know and understand that women have the right to control what they do with their bodies and what sexual activity they involve themselves in. If they cannot not or will not recognize their fundamental position then they cannot remain within the community”.
55. In Public Prosecutor v Tulili, this Court considered whether the Gideon and Scott principles applied to serious sexual offending committed by young people. After an extensive review of all relevant and applicable principles, this Court affirmed that the Gideon and Scott principles concerning suspension remain applicable even when offenders are young.”
19. In Tartar, the rape offending happened when the appellant was aged 15 years. He was not however sentenced until he was 16 years. The Court accepted he was young and that youth was relevant to assessing the appropriate end sentence. But even then, the Court ordered a partial and not a fully suspended sentence, accepting there were exceptional circumstances. As the Court said at 64:
“…The seriousness and circumstances of the offending may outweigh youth and require a sentence of imprisonment without suspension, such as rape offending, even when the offender is young, as was held in Public Prosecutor v Tulili.”
20. In the present case, the defendant tried to penetrate the 14 year old victim’s vagina and when he could not do so, forced her to perform oral sex on him. While he is relatively young, the offending is serious, and the Gideon principles apply to sentencing of young offenders. Without predetermining the sentencing outcome, it is difficult to see how there could be a fully suspended sentence for this offending, given the principles discussed at length in Tartar.
21. Therefore, for the following reasons, I declined to grant the defendant bail pending sentence:
a. This is serious offending.
b. The defendant will be sentenced next month.
c. In terms of s 60 of the CPC, there is a presumption against bail for rape offending. The defendant has not suggested any special or good reason as to why bail should be granted, as accepted by Ms Sarisets.
d. The Court is bound by decisions of the Court of Appeal, which has said that the Gideon principles apply to young offenders. A fully suspended prison sentence is unlikely for the reasons set out above, notwithstanding the defendant’s relative youth, as also accepted by Ms Sarisets. It may be the Court will impose a partially suspended sentence, but if so, the defendant will still spend a period of time in custody.
DATED at Luganville this 12th day of October 2026
BY THE COURT
………………………
Justice M A MacKenzie