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Public Prosecutor v Noal [2004] VUSC 36; Criminal Case No 022 of 2004 (15 September 2004)

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


Criminal Case No. 22 of 2004.


PUBLIC PROSECUTOR


-v-


MARKSON NOAL


Coram: Mr. Justice H. Bulu


Mr. Abel Kalmet for the Public Prosecutor
Mr. John Stephens for the Defendant


Hearing Date: 9 September 2004.
Judgment Date: 15 September 2004.


SENTENCE


Introduction


  1. Markson Noal is 19 years old and is a taxi driver in Port Vila.
  2. On the night of 27 June 2004 Mr. Noal picked up X at Nambatri and drove her to a secluded spot at Tagabe where he raped her. X is 16 years old and is a student at Port Vila City College. The matter was reported to the police that same night.
  3. Mr. Noal was arrested on 29th June 2004 and has been remanded in custody since. He admitted to the Police everything that was reported to the Police by X earlier.
  4. On 3rd August 2004, he pleaded guilty to the count of rape contrary to Section 91 of the Penal Code Act [Cap. 135]

Issues for determination


  1. The facts are not in dispute. The only issue for determination in this proceeding is sentence. In the circumstances of the commission of the offence what would be the appropriate sentence for Mr. Noal.

Facts


  1. Mr. Noal is charged with one count of rape contrary to section 91 of the Penal Code Act Cap 135. Mr. Noal is a taxi driver in Port Vila. The victim is a young woman of 16 years of age whom I will call X. She lives with her parents at Nambatri area.
  2. The incident took place on the night of 27th June 2004 at Tagabe area.
  3. At around 11.00 p.m. X was on her way to Inomakas store at Nambatri area to buy some essentials upon her father’s request. On her way to the store, Mr. Noal pulled up in his taxi next to her and offered to drop her at the store. X refused and said she would walk as the store was not far. Mr. Noal told her that he was going to the store also. On that X agreed and got into the taxi. They drove past the store and did not stop. Mr. Noal assured her that they would drive around a bit to Tagabe and back to the store. X knows Mr. Noal because of his relationship with a girlfriend of hers.
  4. On arrival at Tagabe the taxi continued along a gravel road to a secluded spot where Mr. Noal turned off the ignition and the car lights. The place was very dark. Mr. Noal proceeded to kiss X who did not resist because she was afraid. They were alone. Mr. Noal opened the door and got out. X attempted to turn on the ignition but the defendant stopped her and told her to get out of the car. When she did Mr. Noal took hold of her and started to kiss her again. She was scared and remained standing. Mr. Noal then removed her skirt and her panty. He opened the back door and pushed X down on the chair and removed his own clothing. He attempted to have sexual intercourse with her but she struggled and opened the other back door attempting to get out. Mr. Noal got hold of her and pulled her to the front of the taxi and placed her on the hood. He told her to put her legs on his shoulders. She struggled but gave up as she was becoming more scared. She complied with Mr. Noal’s demand.
  5. Mr. Noal then had sexual intercourse with X. She felt great pain in her vagina and asked the defendant to stop but he continued. He got off her when he had finished and told her to put on her clothes.
  6. After getting dressed they drove back to Nambatri. Mr. Noal dropped her off at the gate to their house. X told her parents about what happened. She then went to the police station with her parents and brothers and made a statement to the police.
  7. Mr. Noal was arrested on the 29th June 2004. After being cautioned he admitted the acts done to X by his statement to the police and has remained in police custody since his arrest.

Public Prosecutor’s position


Sentence


  1. The Public Prosecutor submitted that the leading authority in relation to the appropriate sentence to be imposed when a person is convicted and to be sentenced for the offence of rape contrary to section 91 of the Penal Code [CAP 135] is Public Prosecutor v Maslea Scott and Jeremiah Tula, Court of Appeal, [2002] VUCA 15; Criminal Appeal Case No. 2 of 2002.
  2. In that case the Court of Appeal stated that “it will only be in the most exceptional cases that suspensions could ever be contemplated in a case of sexual abuse”. The Court of Appeal went on to quote and adopt a sentencing guideline pronounced by the Chief Justice in the Supreme Court in Public Prosecutor v Ali August [2000] VUSC 73; Criminal Case No. 14 of 2000 as follows:

“The offence of rape is always a serious crime. Other than in wholly exceptional circumstances, rape calls for an immediate custodial sentence. This was certainly so in the present case. A custodial sentence is necessary for a variety of reasons. First of all, 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 last by no means the least, to protect women. The length of the sentence will depend on the circumstances.


For rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested case. Where a rape is committed by two or more men acting together, or by a man who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive the starting point should be eight years.”


Aggravation


  1. The Public Prosecutor submitted that the leading authorities are the cases of Public Prosecutor v Scott & Tula [2002] VUCA 15, and Public Prosecutor v Ali August [2000] VUSC 73. In the former case the Court of Appeal quoted and adopted the sentencing guideline pronounced in the latter case. The latter case laid down the rule that the offence of rape should be treated as aggravated if any of the following aggravating features is present:-

16. The Court of Appeal went on to say:


“Where any one or more of these aggravating features are present, the sentence should be substantially higher than the figure suggested as the starting point.


If the defendant pleads guilty, the sentence should be reduced by 1/3 depending on the circumstances, including the likelihood of a finding of not guilty had the matter been contested.”


  1. In the present case, the Public Prosecutor submitted that the following aggravating features are present:-

Customary settlement


  1. The accused has performed a reconciliation ceremony in accordance with custom to the complainant. The Public Prosecutor submitted that the customary settlement should not affect the nature of the punishment which in this case warrants an immediate custodial sentence. He referred the Court to the case of Public Prosecutor v Peter Wayane and Others [2000] VUSC 57; Criminal Case No. 8 of 2000, as authority for the proposition. The Court held in that case that:

“A defendant commits an offence must pay the price for the penalty prescribed such offence and customary settlement cannot exchange such punishment but can only ease the ill feelings between the parties and their relatives and also as stated above it benefits sentence.”


  1. The circumstances of the case cited are different to the present case. However the Public Prosecutor submitted that the Court should adopt the sentencing principles laid down in that case.
  2. In the Case of Kevin Gideon Criminal Appeal Case No. 03 of 2003 the Court of Appeal had this to say in relation to section 119 of the Criminal Procedure Code:-

“Section 119 is relevant to an assessment of the quantum of the sentence and not the nature of the sentence. It can influence the length of a sentence of imprisonment or the amount of a fine, but not its fundamental nature. In other words the section cannot alter what is otherwise an appropriate immediate custodial sentence to a non custodial sentence as has occurred in this case.”


  1. The Court of Appeal went on to conclude that: “Men must learn that they cannot obtain sexual gratification at the expense of the weak and the vulnerable. What occurred is a tragedy of all men. Men who take advantage sexually of young people forfeit the right to remain in the community.”

Relevance of plea


  1. The Public Prosecutor submitted that a guilty plea generally entitles a defendant to a reduction of 1/3 in the penalty to be imposed. The reduction is made in recognition of the utilitarian value of the plea (saving the prosecution and the Courts time) and as evidence of contrition and remorse. The Public Prosecutor submitted that the defendant has admitted the offence to the police when interviewed and has pleaded guilty to the charge of rape and therefore is entitled to a reduction of the penalty by 1/3.
  2. For rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested case. From the starting point, the existence of aggravating features takes the quantum of sentence to a higher level than five years. With a guilty plea, 1/3 of the sentence to be imposed ought to be in the range of 5 years imprisonment submitted the Public Prosecutor.
  3. Mr. Noal has no previous convictions.

Defendant’s Position


Sentence


  1. Mr. Noal acknowledged that the sentencing guideline for the offence of rape is established by the case of Public Prosecutor v Scott & Tula.
  2. The offence of rape committed by Mr. Noal on X is without any aggravating factors. The offence was not planned; there was no use of a weapon to frighten X. There was no violence over and above the force necessary to commit rape. The rape was not repeated. X was not of a very young age but was at the age starting to be exposed to adult life. She was 16 years old. Mr. Noal was not in a position of trust towards her. The medical report proved sexual penetration but showed that X was not subjected to further sexual indignities or perversions. There is no effect whether physical or mental on X. Mr. Noal is a first time offender and this is his first time to appear in Court for a criminal offence.

Mr. Noal has pleaded guilty to the offence and as such his sentence must be reduced by 1/3 pursuant to the guideline judgment.


Mitigation


  1. Mr. Noal is 19 years old. He works as a taxi driver and has a girl friend who works at Au Bon Marché, Downtown. The defendant’s parents live at Ohlen Freshwind area. The defendant lives with his adopted mother at Etas village. The mother does farming by planting agricultural crops and comes to Vila to sell at the market twice in a month..

Customary settlement


  1. There was a custom ceremony performed by Mr. Noal to X on Wednesday the 18th of August 2004. The purpose of the custom ceremony was to show that Mr. Noal was very sorry and expressed deep remorse to X for what he has done to her. The custom ceremony was accepted by X. The custom ceremony was witnessed by Chief Joel Busai, Chief Iauko and Chief John Kalsong from Emau Island. The other immediate members of X’s family were present.
  2. Mr. Noal acknowledged that custom ceremonies in such a case of rape does not affect the nature of the sentence but may affect the quantum of sentence unless there are special circumstances to warrant a non custodial sentence.
  3. The guideline judgment says that for a rape committed by an adult without an aggravating or mitigating feature, a figure of five years should be taken as the starting point in a contested case. Mr. Noal submitted that this case is not contested and carries no aggravating features, but several mitigating features. He submitted that the starting point should be less than 5 years. It should be 4 years. From that starting point, it must be further deducted by 1/3 for the guilty plea of the defendant. Mr. Noal also submitted that another 1/3 of the sentence should be deducted for the custom ceremony he had performed to X. This should leave him with a total of 1 year and 7 months to serve in jail.
  4. Mr. Noal therefore submitted that a prison sentence of 1 year 7 months is an appropriate sentence. He has already spent 54 days in custody and that must be deducted from the sentence that he is going to receive.

Discussion


  1. The facts of the case are not disputed.
  2. There are in my view aggravation. These are:-
    1. Noal tricked X to take her to the shop in his taxi. Once she got in and the taxi was moving, he began to reveal his true intention. That they will go for a quick ride.
    2. Noal took X to a secluded spot. There were no lights. The place was dark and they were alone.
    3. Noal used force necessary to commit rape.
    4. Some planning was involved.
  3. There is no evidence submitted to the Court that the effect on X is of a special serious nature.
  4. X is a young woman of 16. She is not a child.

Mitigation


  1. Noal pleaded guilty to the offence.
  2. Customary settlement has been performed to the value of VT27,950.
  3. Noal is a first time offender. He has said he is sorry for what he did.

Findings


  1. I have taken into account the aggravating features and mitigating features. In my view the appropriate sentence is a custodial one. This is to mark the gravity of the offence. To emphasize public disapproval. To serve as a warning to others. To punish the offender and finally, to protect women.
  2. This is a case that is not contested. Mr. Noal admitted everything to the Police as reported by X. Mr. Noal pleaded guilty to the offence. In line with the principles stated in the cases of PP v Ali August and PP v Scott & Tula, I consider 3 years to be an appropriate starting point.
  3. For the aggravating features it goes up to 4. For the guilty plea one third of that 4 years is deducted. I deduct 20 days for customary reconciliation ceremony. 60 days already spent in custody is also deducted.
  4. Mr. Noal, I sentence you to 2 years, 5 months and 10 days in prison.
  5. You have the right to appeal this sentence within 14 days.

DATED at Port Vila, this 15th day of September 2004.


H. BULU
Judge.

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