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Public Prosecutor v John [2004] VUSC 44; Criminal Case 008 of 2004 (1 September 2004)

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

Criminal Case No. 08 of 2004

PUBLIC PROSECUTOR

–v-

LESLY JOHN

Coram: Justice Treston

Mr. Csiba for Public Prosecutor
Mr. Bartels for Accused

Date of Sentence: 01 September 2004

SENTENCE

You appear for sentence today on a charge of rape, which carries with it the possibility of life imprisonment. You have pleaded guilty and credit will be given to you for that in due course. Since you pleaded guilty you have been in custody and that will also be taken into account in due course.

This occurred as alleged sometime ago in fact when on 17 December 2002, you and the victim, who are both from South East Ambrym, had gone to a village for a wedding. The victim's parents had gone home but she remained and you and she were dancing together. You decided you wanted to go outside and you forcibly pulled her by the hand although she said she did not wish to go. Once outside, you asked the victim to have sex with you. She said no but you pushed her and she fell down and you removed your trousers. Sexual intercourse then took place and she felt some pain and after sometime you bit her right arm above her breast. She was bleeding from her vaginal area the next day, which led to the incident being noticed, but I place no significance upon that because it seems she may have not had sexual intercourse before.

When interviewed by the police, you admitted having sexual intercourse with her. You stated that you had had a significant amount to drink which was unusual for you. You conceded that when you asked her to have sex with you, she said no but you said you went ahead nevertheless and you said that the bite occurred because it was simply a reaction by you as a result of what had happened. She of course had her clothes removed by you before you had intercourse with her. She said that she had fears when you were holding her by the hand and taking her outside.

The Prosecutor submits that because of your present age you should be sentenced as an adult. There has been some investigation carried out as to your actual age, which for one reason or another has never been documented by the appropriate authorities. It is now common ground that you are now either 17 or 18 years of age which places you at 15 or 16 years of age when the incident and the crime occurred but it is clear that there is no bar to you being sentenced as an adult today in this Court.

The Prosecution in summary submits to me that as there was a degree of force used in that the victim was held firmly by the hand and forced outside and then, on your own admission, pushed in one way or another onto the ground, that you should be sentenced to 5 years imprisonment.

Your counsel, to the contrary, seeks to persuade me that a course other than imprisonment should be followed. I am reminded that you were brought here to Port Vila as a result of the matter more than 12 months ago from your own island and have remained here since then on bail conditions until your remand in custody on your plea of guilty. I am reminded that you have stayed out of trouble. You are a first offender and your counsel stresses that on your behalf there has been what is called a Pre-sentence Psychological Report prepared by Kylie Powers who has a BA in Psychology and a post-graduate diploma in Family Therapy Psychology. Although your counsel accepts that the report is not necessarily totally in your favour I am grateful for the report and it gives me some insight into your circumstances. It refers to the fact that you are the youngest child in a family of 5 boys and 1 girl and have had close relationship with your family. It seems that prior to you being brought to Vila and prior to your incarceration it was in fact your responsibility to care for your parents. In addition in doing that, it seems you assisted with harvesting of coconuts and the preparation of Kava, although not on a paid employment basis. You told the psychologist that you had been in a relationship with the victim for about six weeks prior to the offence. There is reference to the alcohol that you had imbibed that evening and the fact that you accepted that the victim probably did not agree to have sex until after you and she had formalized your relationship, even by way of marriage. The report highlights the fact that you continued despite the objection of the victim to the activity. The report refers to fact that this was your first sexual and intimate relationship and that you are said to show immaturity, naiveté and lack of skills and knowledge in relation to such a relationship. The assessment really is that you fall in a moderate to low risk group for sexual recidivism and there are matters that could assist you by way of discussion and counselling with senior members of the community. Unfortunately, as counsel has conceded, there are no formal treatment programmes for sex offenders here in this country. Although the report writer has not qualified herself by way of experience to justify what weight the Court might put on the report, I am grateful for it nevertheless.

Your lawyer stresses before me, with reference to the appropriate authorities, that there were no significant aggravating features here apart from the force that you used to take the victim outside and to push her onto the ground. I am asked to accept that you were forthright and cooperative with the police and that you would have taken part in a custom settlement under the legislation had you been able to do so on your own island. I am asked to consider suspending any sentence of imprisonment because of your age and because you are a pubescent adolescent rather than a man. I am reminded that there could possibly be counsellors available through the auspices of the Vanuatu Women's Counsel to assist you with counselling. It is said by your counsel that the separation from your family, the incarceration for the first time and the very experience that you have undergone would be sufficient to justify the Court in suspending any sentence of imprisonment.

When I consider the question of sentence I must of course take into account the maximum potential sentence that I have referred to which is life imprisonment. I must hold you accountable for the harm done not only to the victim but also to the community generally. I need to underline the responsibility that you as a person must have as a result of the offending. Any sentence must denounce your conduct and deter you in particular and other like minded offenders from carrying out that sort of activity. I need to protect the community of course but I also need to take into account your rehabilitation. Although I am not given specific details about the effect of the crime upon the victim, reading between the lines of her statement indicates that it has certainly inevitably had some effect on her. I need to adopt the least restrictive outcome from your point of view that is appropriate.

There are some aggravating features of course including the force that you used in taking the victim from the dance and in pushing her onto the grounds despite her telling you in clear language that she did not want any part in this activity. In saying that it seems to have been opportunistic offending rather than premeditated and as for mitigating factors of course I take into account your age and I have already documented that. I give you credit of course for your plea of guilty and take into account your previous good character because you are a first offender.

Significantly however, there has been no real expression of remorse by you for what happened and to an extent you are only considering your position rather than that of the victim. That may well be because of what was set out in the psychologist's report with reference to your inexperience, immaturity and naiveté, but I must balance aggravating and mitigating factors, one against the other.

In the decision of Public Prosecutor v Ali August [2000] VUSC 73; CC14 of 2000 in this Court the Learned Chief Justice referred to the offence of rape in this terms:

" 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 emphasis public disapproval. Thirdly to serve as a warning to others. Fourthly to punish the offender, and last by no means least, to protect women"

I have in fact referred to some of those aspects in my remarks already. The Chief Justice went on to say:

"For rape committed by an adult without any aggravating or mitigating features a figure of 5 years should be taken as a starting point in a contested case."

Your counsel seeks to persuade me that you are anything but an adult and that I ought to deal with you somewhat differently.

The August Case also referred to certain aggravating features and the only one that is relevant to your case is the force used which was not at the high end of the scale. In that case the Chief Justice also said this

"If the Defendant pleads guilty, the sentence should be reduced by one third depending on the circumstances, including the likelihood of a finding of not guilty had the matter being contested."

He also said previous good character is of a minor relevance. I bear in mind for sentence the principles, which I have set out as well as the relevance of those to this jurisdiction as set out in the Chief Justice's decision. On an arithmetical basis, if I took the starting point as 5 years, which it would be for a defended case and reduced it by one third I would be left with a result of just under 3 1/2 years. From that I must deduct the period of six weeks for the time you have already been in custody and that would bring the sentence to 3 years 2 and 1/2 months. In fact I give you a further deduction for your youth, inexperience and naiveté and thus I consider that the appropriate sentence is three years imprisonment.

I consider but reject the prospect of a suspended sentence because in view of all the factors that I have referred to, despite your age etc, I think that that would be inappropriate. To suspend a sentence in a matter such as this would send out a completely wrong message to the inhabitants of this Republic and particularly I must take into account that women in this country must be protected. I am certainly not using you as a scapegoat in way whatsoever for the sins of others and for the reasons that I have been careful to point out I have been as generous as I consider that I am able in your particular circumstances. I agree that, if it is at all possible, you should receive counselling within the prison, if that can be arranged through your counsel, and you may well be able to enlist the assistance of the Vanuatu Women's Counsel and the male counsellors which they have access to. That is because I agree that your rehabilitation is important but that cannot overshadow what I consider is the appropriate sentence. I trust and I am sure that when you are released, you will not be before the Courts again.

So the bottom line is that you are today sentenced to three years imprisonment and you have 14 days to appeal that decision if you are not satisfied with it.

A warrant will be prepared and you will be returned to custody to serve your sentence very shortly.

I am grateful for the assistance which counsel have given to this Court in the matter.

Dated at PORT VILA, this 01^st day of September 2004

BY THE COURT

P. I. TRESTON
Judge