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

Criminal Case No. 58 of 2005

PUBLIC PROSECUTOR

-V-

JOHN TARILINGI
GLENDA GAMMA

Coram: Vincent Lunabek – Chief Justice

Mr Abel Kalmet for the Public Prosecutor
Mr Peter Bartels for the Defendants

SENTENCE

This is the sentence of the two Defendants, John Tarilingi and Glenda Gamma. 
On the 1st November, 2005, the two (2) Defendants pleaded guilty to the following offences:-

•	John Tarilingi

Attempted Rape, contrary to sections 28 and 91 of the Penal Code Act [CAP.135] as charged in Count 1; and

Rape, contrary to section 91 of the Penal Code Act as charged in Count 3; 

•	Klinda Gamma

Aiding Attempted Rape, contrary to sections 28, 30 and 91 of the Penal Code Act [CAP 135] as charged in count 2; and

Aiding Rape, contrary to sections 30 and 91 of the Penal Code Act, as charged in count 4.

Both Defendants accept and admit the particulars of the offences as set out by the prosecution. Those facts are as follows:-

John Tarilingi (JT) is from Ambae and is married and currently resides at Beverly Hills, Port Vila. Glenda Gamma (GG) is from Ambae and lives at Fresh Wota Area, Port Vila.

The victim girl complainant (V/C) is currently 19 years of age and goes to high school in Port Vila and resides with GG her mother prior to the reporting of the matter to the police. (JT) is the adopted brother of the girl victim. Both look to (GG) as their mother.

The victim girl complained about two (2) incidents against the two (2) defendants.

The first incident occurred at Bellevue area. On the evening of 15th May 2005 (JT) telephoned (GG) that he was coming to take (GG) and his daughter. The girl did not know about the reason of his coming.

Around 8:00 pm that night (JT) arrived at GG’s residence at Fresh Wota with his gray Mitsubishi pickup truck number 5645 and pickup (GG) and the (V/C) and they drove towards Montmartre Area.

(V/C) did not know why they were driving to that area but saw that as they were half way there just before a restaurant known as Les Alizes, they left the main road turning to a dirt road that led to a clearing overlooking the Korman Stadium and lagoon.

Once in that area, (JT) stopped the vehicle and went outside calling to (GG) to follow him and they were talking while the (V/C) remained in the truck but could not work out what was being said.

(GG) then approached the (V/C) and was crying and said that JT had sent her and said that he wanted to have sex with her (V/C). The girl (V/C) immediately said no and asked GG why they had come to this area to which she (GG) replied that she had no idea and she (GG) left and went to the back area of the truck and continued to cry.

It was then that (JT) approached and entered the truck and inquired if (GG) told her anything but the girl remained silent and he again repeated his question.

Defendant (JT) immediately became cross and slapped the girl on her chest and shouted angrily at her. The girl cried out and (JT) told her that he was tired because of the way she was acting.

(JT) then pulled the girl close to him by holding on to her t-shirt collar and attempted to kiss her but she refused. (JT) then lifted her (V/C) t-shirt and attempted to suck her breast and she tried to push him out but was unsuccessful as the space in the truck seat was small and (JT) was big.

(JT) then managed to pull down the girl’s shorts and then removed his own trousers and forced himself between the victim’s legs attempting to open her legs but she squeezed herself into the truck seat. (JT) pushed his penis towards the girl but was unsuccessful as she was sitting down low towards the seat and was also crossing her legs tightly. (JT) had persisted to come close to her but after around 15 minutes he was unsuccessful.

(JT) then told her that she was being too hard and he then put on his trousers and moved back to the driver’s seat and called out to (GG) to return to the truck and he then drove them home to Fresh Wota.

During the struggles the girl had tried to escape but was prevented by (JT) who kept her in the truck and also because the passenger seat she was sitting on had faced the cliff overlooking Korman Stadium so she feared falling down the cliff. That night it was a clear night with bright moonlight so the girl was able to see everything that happened clearly.

The second incident occurred at Whitesands area. Sometime between 16th May and 31 May 2005 (GG) told her complainant daughter that JT was coming to pick them up as he wanted to talk to her (V/C).

JT arrived and picked up GG, (V/C) and Jane Gamma who is the girl’s complainant’s sister who attends school at Montmartre High School in Efate. They drove towards Whitesands and parked next to the beach were JT and (GG) left the truck and were outside talking while (V/C) and her sister remained inside but could not hear what was being said. (GG) then came to (V/C) and told her to go and see defendant (JT) as he wanted to say something to her but the girl refused so (GG) continued to tell her to go so she went to see (JT) who was about 5-10 meters from where (GG) was standing.

The victim girl approached (JT). (GG) then came after her and gave her a cloth as the place was cold and because (JT) had asked for the cloth to wipe blood, and (JT) then took the cloth and lay it on the sand and made the girl lay down on it.

Once the girl was with (JT) he caressed her face and told her that he was going to have sex with her but she refused as she never had sex before. (JT) told her to remove her t-shirt but she refused and held on the gray jacket she was wearing that night. (JT) continued to pull on her clothes and despite her act to stop he succeeded and then held and was pulling her shorts;

She refused and held on to her shorts and said she was afraid she will get pregnant but (JT) said he knows and he is the expert and she will not be pregnant. (JT) then succeeded to pulling out her shorts and at that time the girl was crying and was afraid as she had never gone through this experience but (JT) was comforting her to remain calm and then he forced her legs to open.

The girl at that time, felt her leg stiff and she was tired after the struggles and (JT) manage to have her legs to open. (JT) then lay on top of her and attempted to enter her but she was in pain and it was not possible but after several attempts he finally succeeded in entering her vagina with his penis. The girl was in pain when (JT) entered her and (JT) then carried out oral sex on her including sucking her breast which was against her consent.

The girl was unable to say how long the act occurred but once they both returned to the truck and returning home, JT and GG were chatting while the girl victim remained silent.

Once at home (GG) asked the victim daughter if she was ok and told her to go and check herself at the bathroom to wash her blood. After the two (2) incidents (JT) did not drive them out again. However he would still contact the girl by phone or visiting her while she was in school bringing her takeaway food and she felt unsafe the whole time.

The girl did not report the matter as she was facing threats from (JT) who said he was going to kill her and he will commit suicide if she reported his actions.

The girl says that (GG) told her that (JT) had forced her and put her under pressure causing her to act the way she did.

The matter was reported sometime before 26th September 2005 when the victim girl had sought refuge with her uncle at Independence Park after (GG) had assaulted her and she had felt afraid because of the incidents that had happened.

On 26th September 2005 a customary settlement was carried out by (JT) and the victim and her uncle totalling VT102,000. A later bigger ceremony was carried out on 23rd November 2005 by (JT) and (GG) to the girl and her uncle as follows:

By (JT): total worth	323,000 VT
By (GG): total worth	151,000 VT
Total for both		474,000 VT
				=========

-	Total worth to victim:	115,000 VT

The Defendants are charged with very serious offences of a sexual kind under the Penal Code. The relevant provisions are sections 28, 30, 90 and 91 of the Penal Code Act [CAP. 135]. They are set out below:-

ATTEMPTS

“28. (1)	An attempt to commit a criminal offence is committed if any act is done or omitted with intent to commit that crime and such act or omission is a step towards the commission of that crime which is immediately connected with it, or would have been had the facts been as the offender supposed them to be.

(2)	An attempt shall be committed notwithstanding that complete commission of the offence was impossibly by reason of a circumstance unknown to the offender.

(3)	The commission of an attempted offence shall constitute an offence punishable in the same manner as the offence concerned.”

COMPLICITY

“30.	Any person who aids, counsels or procures the commission of a criminal offence shall be guilty as an accomplice and may be charged and convicted as a principal offender.”

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.”

PUNISHMENT OF RAPE

“91. No person shall commit rape.

Penalty: Imprisonment for life.”

The leading authority in relation to the appropriate sentence to be imposed when a person is convicted 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, Criminal Appeal Case No. 2 of 2002.

In that case the Court of Appeal adopted a sentencing guideline set by the Supreme Court in Public Prosecutor v. Ali August in Criminal Case No. 14 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 in 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 least, to protect women. The length of the sentence will depend on the circumstances. That is a trite observation, but these in cases of rape vary widely from case to case.

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 brave 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.

At top of the scale comes the defendant who has committed the offence of rape upon a number of different women or girls. He represents a more than ordinary danger and a sentence of fifteen years or more may be appropriate.

Where the defendant’s behaviours has manifested perverted or psychopathic tendencies or gross personality disorder, and where he is likely, if at large, to remain a danger to woman for an indefinite time, a life sentence will not be appropriate.

The offence of rape should in any event be treated as aggravated by any of the following factors:

(1)	Violence is used over and above the force necessary to commit rape;

(2)	A weapon is used to frighten or wound the victim;

(3)	the rape is repeated;

(4)	The rape has been carefully planned;

(5)	The defendant has previous convictions for rape or other serious offences of a violent or sexual kind;

(6)	The victim is subject to further sexual indignities or perversions;

(7)	The victim is either very old or young;

(8)	The effect upon the victim, whether physical or mental, is of special seriousness.

Where any one or more of these aggravating features are present, the sentence should be substantially higher then 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.”

In the present case, the following aggravating features are present:-

1.	The act of rape was carefully planned;

2.	The defendants used force and threat to induce sexual intercourse;

3.	The act of rape was repeated, though the initial act was attempted;

4.	The victim is young girl of 19 years of age and currently attending high school;

It is of a very serious concern to note that rape has becoming a common offence in Vanuatu. This is unacceptable. Women and girls must be protected. The courts must set severe punishment to Rape offenders. The starting point for rape set in the case of PP v. Ali August, in a contested case should be substantively increased for the following reasons:-

First, to mark the gravity of the offence; second, to emphasize and mark public disapproval; third, to serve as a warning to others; fourth, to punish the offender; and the last but not least is to protect women and girls.

It is unfortunate as I could not do that in the present case as the present case is not a contested case but the defendants pleaded guilty to Rape and attempted Rape at the first opportunity offered to them.

What follows are the back-ground information about the two (2) defendants:

John Tarilingi

The Defendant is aged 42. He comes from Nanigama Village, Longana, a village consisting of over 200 people in East Ambae. He is married and has a wife and one child. He is self-employed and conducts business of Public Transport and Freight Agent. His income is approximately VT50,000 per month.

He has been an active and hard working member of his community as well as a long serving member of the Sarabetu Church of Christ. He has been considered (with his wife) to be the “backbones” to the youth of the Church.

This offending by the Defendant in these offences has had a dramatic and traumatic effect on the following parties:

•	The Victim
•	His wife and immediate family
•	The Church Community of which he was a member
•	The general Community of which he belonged and was an important and hard working member
•	Lastly on the Defendant himself.

The Defendant himself upon realising his unlawful behaviour has himself been traumatised in that his wrongdoing has hit home. He understands that he has done wrong not only to the Victim but also to so many other people who looked up to him to do the right thing.

The Defendant feels shame and embarrassment and has experienced a punishment of a sort in coming to the realisation that because of these actions he faces a period of incarceration. He is fearful of being imprisoned and this has also played on his mind since the time of charging. 

The Defendant has taken part in a custom settlement to “clean face” and restore a sense of order and peace into the community and appease the victim and those associated as a result of the wrong he has done.

The Defendant through his Counsel urges the Court to punish him but in a way that recognises the cost to him already by way of a shame and recrimination and regret he has already experienced.

The Defendant through his Counsel expresses his sincere apologies to the Victim, and the Community both of Church and his local Community for the wrong he has done.

The Defendant is hopeful upon his release to make good the wrong he has done to the Victim and all the other people he has hurt by his actions. 

The Defendant has no prior criminal record.

A number of testimonials on behalf of the Defendant are produced to the Court.

Glenda Gamma

The Defendant is aged 48. She comes from Nanigama Village, Longana, a village consisting of over 200 people in East Ambae. She is a widow lady. The Defendant’s husband died on 11th June 1996. At the time of her husband’s death, the Defendant had six children as follows: Jeff aged 15, Jerry aged 12, June aged 10, Jessie aged 8 Jane aged 5, and Jandy aged 2.

The Defendant has worked as a Court Clerk since 1994 (some 11 years) and earns approximately vt46,000 per month.

Jerry, Jessie and (the victim daughter at least until the offences occurred) live at home. The Defendant is responsible for the payment of school fees for her two daughters. These school fees are VT30,000 for the victim daughter and VT19,000 for Jane (Victim’s sister).

In addition the Defendant pays up to VT6,000 per month for rent.

The Defendants son Jeff (1st born) resides in Ambae and her daughter Jane attends school MoMart, as a year 9 student. Her other child Jandy is a year 7 student at Matevulu College at Santo.

The Defendant has been described as a faithful member of the Churches of Christ in Port Vila where she attends weekly Sunday worship and other programs. In addition she is known as an active member of the Christian Women’s Fellowship of the Sarabetu Church of Christ.

The Defendant suffers from debilitating High Blood Pressure and Diabetes. She has taken medication to control these illnesses. She suffers these illnesses on a periodic basis and both illnesses are aggravated by stress and worry.

She has been generally highly regarded by her Community, the Church Community and the Community generally.

The Defendant by way of explanation says she is responsible for her actions but in mitigation the following matters are put on her behalf.

At the time of the offences the Defendant had financial debts of VT90,000 for school fees; she had been feeling unwell due to her illnesses, she had been taking her medication.

Over the period after the death of her husband the Defendant had received financial support from both the co-defendant John Tarilingi and his wife Daphne.

Both the co-defendant and his wife Daphne gave money to the Defendant for payment of her water, light and food expenses together with financial assistance towards payment of her children’s school fees. This kindly financial assistance was given by the co-defendant and his wife to the Defendant and her family for a period of some nine years.

The Defendant came to know of the co-defendant’s rubbish thoughts towards the Victim, her daughter, but she felt confused, uncertain and ashamed as to how to deal with this problem involving the co-defendant’s feelings towards her daughter.

The Defendant due to the financial assistance that had been given by the wife of the Defendant towards her and the ongoing feelings of gratitude and obligation towards the co-defendant and his wife, could not bring herself to complain to Daphne, the wife of the co-defendant about this problem who had given her so much support including financial support in the past.

The Defendant felt that she was isolated in this problem and could not speak to any one else concerning this personal and shameful development in her life.

The Defendant was not able to think clearly given the confusing, stressful and worrying development in her life together with her poor health.

The Defendant made wrong decisions given this background for which she has already suffered the penalties of failing health and shame and scorn by some of the community (s) which were formerly supportive of her and her family.

The Defendant has performed a sorry custom settlement. The Defendant’s daughter, the victim, attended the ceremony and has fully forgiven her mother.

The Defendant’s daughter, the victim, wants to get back closer to Defendant and as I understand is present in Court supportive of the Defendant/Mother.

This offending by the Defendant in these offences has had a dramatic and traumatic affect on the following parties:

•	The Victim/her Daughter
•	Her immediate family
•	The Church Community of which she was a member
•	The general Community of which she belonged and was an important member
•	Work colleagues
•	Upon the Defendant herself.

The Defendant herself upon realising her unlawful behaviour has been traumatised in that the realisation of her wrongdoing has hit home. She understands that she has done wrong not only to the Victim but also to so many other people who looked up to her to do the right thing.

The Defendant feels shame and embarrassment and has experienced a punishment of a sort in coming to the realisation that because of these actions she faces a period of incarceration. She is fearful of being imprisoned and this has also played on her mind since the time of charging.

The Defendant has taken part in a custom settlement to “clean face” and restore a sense of order and peace into the community and appease the victim and those associated as a result of the wrong she has done. She has been forgiven by the Victim and the Victim’s Uncle. The Defendant takes great comfort in achieving a sorry settlement especially and mainly with her daughter the Victim.

The Defendant through her Counsel urge the Court to punish her for these offences but with respect, in a way that recognises the cost to her already by way of shame and recriminations and regrets she has already experienced.

The Defendant through her Counsel expresses his sincere apologies to the Victim, and the Community both of Church and his local Community for the wrong she has done.

The Defendant is hopeful upon her release to make a make good the wrong she has done to the Victim and all the other people she has hurt by the actions.

The Defendant has no prior criminal record.

A number of testimonials on behalf of the Defendant are produced to the Court. The court take all that into account in sentencing this defendant. 

The defence on behalf of the two (2) defendants recognises the aggravating features of these offences to be:

•	A degree of planning involved in the commission of the offences.
•	The Victim is relatively young.
•	Victim is the Defendant’s daughter
•	Breach of trust.

The Defence submits on behalf of both defendants that the following matters are identifiable as factors that mitigate these offences:

•	No injuries were occasioned to the Victim.
•	The degree of force was minimal and no more than to occasion the offence.
•	The defendant’s lack of prior criminality.
•	The Defendant’s plea of guilty and its utilitarian value to the Court as well as sparing the victim from further trauma in reliving the details in Court.
•	Participation in a Custom Ceremony (to clean face) attracting the provision of section 119 of the Criminal Procedure Code [CAP. 136]
•	The Victim was present in Court to support her mother. She shows that she is not scared and is supportive of her mother. Wishes for a lenient treatment for her mother.
•	Defendant’s medical condition.

I have taken all the matters raised by the defence on behalf of each and both defendants into consideration. However, the circumstances of this case warrant a custodial sentence.

Applying the guiding judgment of PP v Maslea Scott and others, the appropriate sentence should be a term of 5 years. I sentence the Defendant, John Tarilingi as follows:

-	3 years imprisonment for attempted Rape, contrary to section 28 and 91 of the Penal Code Act [CAP. 135].

-	3 years imprisonment for the offence of Rape contrary to section 91 of the Penal Code.

I consider suspending the sentence. On the facts before me, I decline to do so. The defendant, John Tarilingi, is sentenced to 3 years imprisonment on both counts currently with immediate effect.

I sentence the defendant, Glenda Gamma, as follows:-

-	3 years imprisonment for aiding attempted Rape, contrary to sections 28, 30 and 91 of the Penal code Act.

-	3 years imprisonment of aiding Rape, contrary to sections 28 and 91 of the Penal Code Act.

I consider suspending her sentence. On the facts before me Defendant Glenda Gamma was forced and put under pressure by Defendant John TariIingi causing her to act the way she did. Further because of the debilitating High Blood Pressure and Diabetes, she suffers, I am satisfied that there are sufficient information warranting to suspend her term of imprisonment.

I sentence Glenda Gamma to 3 years imprisonment and suspend it for a period of 2 years.

14 days for both defendants to appeal.

DATED at Port Vila this 12th day of December, 2005.

BY THE COURT

VINCENT LUNABEK
Chief Justice