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

SC No. 16 of 2005

PUBLIC PROSECUTOR

VS.

ZETHRIC LAMPI
NIXON SIMEON

Coram: Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Counsel: Mr Lent Tevi for Public Prosecutor
Mr Jacob Kausiama for the Defendants.

Date of Trial – 6th and 7th December 2005
Date of Sentence – 8th December 2005
Date of Publication of Judgment – 13th December 2005

JUDGMENT

Background

Zethric Lampi a 20 year old boy from Malekula was charged with one count of aiding and abetting the offence of rape contrary to sections 30 and 91 of the Penal Code Act [CAP. 135] (the Act). Nixon Simeon, a 19 year old boy from Mota Lava Island was charged with one count of rape. They both entered pleas of Not-Guilty on 4th October 2005 and were allowed conditional bail on application by the Public Solicitor Mr Hillary Toa.

At 2.15 p.m on 6th December the trial began. The defendants’ rights of presumption of innocence provided under section 81 of the Criminal Procedure Code Act [CAP. 136] was read to them.

Burden and Standard of Proof

The Prosecutions had the burden of proof of the defendants guilt beyond reasonable doubt.

Allegations

These offences were committed by the two defendants sometimes in September 2003. It was alleged that Nixon had forced the complainant to have sexual intercourse against her will. It was further alleged that Zethric had aided and abetted Nixon in the commission of rape by holding onto the victim’s clothes and demanding that unless she agreed to have sex with Nixon, that he would walk away with her clothes and that she would return to her house naked.

Evidence for the Prosecutions

The Prosecutions called two witnesses, the complainant and a police officer who completed the case after the first police investigating officer had passed away in or about 2004.

[The complainant] was a 17 year old student when the incident occurred in September 2003. She did not report the matter to the police until 29th December 2003 some two months later.

Her evidence was that on a Saturday evening last year 2004 she was at their home with her sister-in-law. Zethric went to their house at between 7-8 O’clock and called the sister-in-law. He sent her to tell [the complainant] to come out to meet him. They were having dinner. [The complainant] left her dinner and went to meet Zethric. She went to see him because Zethric was her boyfriend. Their friendship began only a short time earlier. Upon her meeting him, Zethric asked her to go down to the sea with him. She did not want to go with him then but Zethric pulled her and held her tight. Then he asked her to him follow him to the sea to have sex with her. She agreed and they both went down to the sea. They had sex. But after they had finished having sex Zethric held onto [the complainant's] clothes and threatened to walk away with them unless she agreed to have sex also with Nixon. The clothes consisted of a pair of trousers and a panty. She told Zethric that she did not want to have sex with Nixon as he was not her boyfriend. Zethric persisted in his demands and threatened to walk away leaving her to walk home naked. While they were still talking Nixon came around. He advanced towards her for sex. She told him that as he was not her boyfriend she would not have sex with him. But Nixon forced her by threatening that Zethric would not return her clothes unless she agreed. At that and for fear of her father beating her up if she refused him sex and had to go home naked, she therefore had sex with Nixon. It was done against her will. While they were having sex Zethric waited on them with her clothes not too far away. She did not know that Nixon would follow them. She did not run away because Zethric had held onto her clothes. She was surprised to see Nixon standing there.

In cross-examination she agreed that the incident occurred last year 2004. She confirmed making a statement to the police. Counsel referred to the date on the statement and asked her which date was the correct one whether 2003 or 2004. [The complainant] did not answer. She confirmed that Zethric went to her house at 7 O’clock at night. She did not call out to her sister-in-law. Her in-law told her that Zethric has a message from his mother to convey to [the complainant]. Her mother and father were not in the house at the time. Her mother was at South Santo. This part of the evidence was not included in her statement to the police and she did not answer why not. She did not answer the question why she said she was forced by Zethric and whether or not she understand the meaning of force. She said it was only after Zethric had had sex with her that he told her about Nixon. She denied the proposition put to her by Counsel for the defence that she would end her friendship with Zethric if she had sex with Nixon. She said it was her father who told her to go and make a statement of complaint against the defendants. She said that the chiefs had held a meeting about the problem and that they had imposed a fine on the defendants. When the defendants failed to pay their fines, she took the matter to the police. She did not answer the question put to her why she did not report the matter to the police immediately. And she did not answer the proposition that she agreed to make a complaint only after her father had told her to. She did not answer the proposition that she was lying about force and that the only reason she reported the matter was that if she did not do so, her father would beat her up. She said she believed the Bible. She did not answer the question put to her as to why she did not answer the questions put to her. She answered the question put to her as to why she could not refuse sex with Nixon that she did it out of fear that Zethric would not give back her clothes. Asked what made her think that way, [the complainant] said because Zethric had possession or custody of her clothes at the time. That part of her evidence was not included in her statement and she did not provide a reason for it. She did not answer the proposition that if her father had not threatened her to make a report, she did not answer the proposition that she agreed or willingly had sex with Nixon. She did not answer the proposition that she reported the matter only for fear of her father. She did not answer the proposition that it was not her intention that the matter would be prosecuted in court. She did not answer the question whether she enjoyed sex with Nixon. Asked how many months had gone by before she reported the case to the police, [the complainant] apologized that she had made a mistake as to the year being 2003 and not 2004 as she earlier gave in her evidence. Asked why if she only made a report two months later, [the complainant] said it was only because the two defendants had not complied with the chief's order to pay fines. She did not go to the police immediately because she said she had confidence in the chiefs to solve the matter. She did not answer the proposition that she agreed to have sex with the boys but only because her father threatened her that she made a report against them. She did not answer the question why it took her a long time to report the case. She said Zethric was somewhere close by when Nixon was having sex with her but she could not see him. She confirmed that she had agreed to have sex with Zethric. She did not tell anyone in the house about the matter. Asked why she took 2 months to disclose the case, she said because the 2 boys did not pay their fines as imposed by the chiefs. To the proposition that if her father had not sent her, she would never report the case, [the complainant] answered in the affirmative.

In re-examination [the complainant] clarified that Zethric told her to go with him to the seaside so he could tell her some message. She confirmed she followed Zethric because he was her boyfriend. She confirmed that she had agreed to have sex with him and the reason being that they were friends. She confirmed she had sex with Nixon but only because Zethric had told her that if she refused he would not return her clothes. That was the only reason why she agreed to have sex with Nixon as well. The incident happened at night but she could not say if it was really dark or whether there was moonlight.

Jean Baptist Palo, a police officer attached to the CID gave evidence. He took over the case after Eddie Ben had passed away. It was he who interviewed Nixon sometimes this year 2005. He did not remember the exact date. He cautioned the defendant and questioned him about the allegation. Nixon admitted having sex with [the complainant] and that they had settled the matter in custom. Nixon paid VT4.000 and mats. Nixon made a voluntary statement. He read the statement back to Nixon who agreed with it and signed it to indicate his agreement.

In cross-examination the police officer said he took over the case after Eddie Ben had passed away. He did not conduct a full record of interview. He said that Nixon had asked [the complainant] to have sex and she agreed. In his experience in rape cases victims would normally report the incident within 24 hours after its occurrence. He did not recall if there was any medical report.

Based on the foregoing evidence the Court had formed a prima facie view that the defendants had a case to answer. Section 88 of the CPC Act was referred to and explained to the defendants. They chose to give evidence on oath.

Defence Case

Their defence were that sexual intercourse between Nixon and [the complainant] was consensual and further that consent was not obtained by threats or intimidation of any kind.

Evidence for the Defendants

Zethric Lampi, a 20 year old unemployed young boy gave oral evidence. He went to [the complainant's] house and called a woman. She came and he sent her to ask [the complainant] to come out and meet him. He told her about a plan they had made during the day. His friend had sent him to speak to [the complainant] on his behalf. He spoke to [the complainant] and she accepted to go and see his friend. The woman he spoke to was [the complainant's] sister-in-law. His friend sent him to go and tell [the complainant] that he wanted to have sex with her. [The complainant] then told him to go and fetch his friend and they would meet by the sea. When they regrouped by the sea [the complainant] called him to go and see her. He went to her and that [the complainant] asked to have sex with him and he did. After having sex he told her about his friend. [The complainant] told him to ask the friend to come over. So he called to Nixon. Then he left the scene. Counsel asked him about [the complainant's] clothes and he said that when he asked her about his friend having sex with her, [the complainant] retreated from him. He tried to reach her clothes but [the complainant] got hold of them and asked him to call his friend over. He denied forcing [the complainant] in any way.

In cross-examination Zethric confirmed that [the complainant] was his girlfriend and that they had been friends for not more than one month. He confirmed he loved her. He denied that he had lied to [the complainant], but that he did not like her anymore as she was having affairs with married men. He denied making a plan for that reason. Then he confirmed that they had made the plan together with [the complainant]. He denied that he and Nixon had the plan but that he, Nixon and [the complainant] had made the plan together by the sea earlier but before he had sex with [the complainant]. As to what the plan was he said he had met the girl during the day and that during their conversation she told them to meet again at night and that for that purpose they would have to go and get her from her house. He denied the plan was his and Nixon’s but for all three of them. He agreed that he was [the complainant's] boyfriend. Asked if he did not respect [the complainant], he said he did not because [the complainant] also did not respect him. To the proposition that if they had planned together, there was no need to call [the complainant's sister-in-law], Zethric said no, as that was what [the complainant] had asked him to do. He told the sister-in-law to go and tell [the complainant] to go and see him. It was his friend who had sent him to do this. He said he told [the complainant] about his friend. He told [the complainant] that Nixon wanted to have sex with her. He confirmed Nixon had sent him to go and ask [the complainant] to have sex with him. He agreed it was their collective plan that he would befriend Nixon. The friendship was not for the purpose of sex only but to be long time friends. He did not tell Nixon that [the complainant] was having affairs with others. He did not want to merely destroy her but they were simply implementing their plan. They had planned during the day and met in the afternoon. He confirmed that he went to fetch [the complainant] at the request of his friend and that they would meet by the sea. He denied that he was going to discuss something his mother had told him. He confirmed that having passed around the other way [the complainant] called to him. He denied being with [the complainant] but with Nixon. When proposed to him that it was not he who went to meet [the complainant], he said it was him but that he did not accompany her to the seaside. He was not too far away from Nixon and [the complainant]. He then denied he was [the complainant's] boyfriend. When proposed to him that he held onto [the complainant's] clothes he said [the complainant] thought he was going to grab them so she snatched them from him then asked him to call for Nixon. He denied holding on to her clothes. When asked whether his friend was close by he answered in the negative. Whether [the complainant] forced him to be her boyfriend he answered in the negative. He confirmed being a friend to her for not more then one month then they heard that she was having affairs with married men. Then he said [the complainant] asked him to call his friend. He again denied being [the complainant's] boyfriend and confirmed that what he did to her was a normal thing to do. When asked again whether he called his friend, he said yes and when Nixon came around he left the scene to return home. He denied taking [the complainant's] clothes. He was referred to his statement taken by police on 29th December 2003 which he read and agreed that he made the statement. He denied keeping her clothes. He again acknowledged that the statement was his but said what appeared in it does not mean that he removed the complainant’s clothes.

In re-examination he denied walking away with the clothes but confirmed that [the complainant] snatched them from him. Asked by the Court about a meeting he said that there was a meeting during which they paid VT2,000 each, 2 mats and 1 head of Kava.

Nixon Simeon gave oral evidence on oath. He is 19 years old and unemployed. Asked about the evidence of [the complainant] he said the girl lied. When asked what happened he said [the complainant] had sex first with Zethric and then with him. As to what transpired or was said before sex he said [the complainant] told him that if he had sex with her he would become her boyfriend. So he said he had sex with her on her own free will. Asked what happened after sex, he said he left her. He denied taking her clothes.

In cross-examination he confirmed that [the complainant] had proposed to befriend him on her own free will. It was proposed to him that he never met her before and he answered in the affirmative. As to whether he knew [the complainant] and Zethric were friends, he answered in the negative. He confirmed he heard about [the complainant] going with other men but he did not know about her friendship with Zethric. He confirmed he had planned earlier to befriend her. He also confirmed planning to meet her the next day. He confirmed it was [the complainant] who asked him for friendship. When asked whether it was he who sent Zethric to fetch [the complainant] for him, he said no. That he only sent Zethric to tell her to go and see him but not be her friend. He said they planned on the same day, in the afternoon. When proposed that when Zethric said they had planned the day before he was lying, Nixon indicated in the affirmative by nodding his head. He said Zethric went for him and they both went down to meet the girl who went down to the sea by herself. When proposed that the girl went to the sea with Zethric, he said Zethric went with him. That [the complainant] went alone by another route. He confirmed [the complainant] had sex with Zethric and that he was about 2 metres away from them. He said their plan was that he have sex with [the complainant] but then she consented also to having sex with Zethric. He said he did not feel bad about it as he did not know. He said it was not too dark at the time. But he could not see Zethric and [the complainant] because of the bushes blocking his view. He said [the complainant] called Zethric first. When asked why that was so when it was planned, he said [the complainant] called Zethric first because it was he who facilitated the whole thing. Zethric was only arranging things for and on behalf of Nixon. He said the girl sent Zethric to call him. He accepted that the girl was naked but that she wore her panty and trousers again. Then she removed them again. He confirmed what Zethric said that the girl removed her clothes from Zethric. He was shown his statement which he made to the police and confirmed he made those statements. He agreed that his mother had accompanied him to the police station. He agreed to his statements. Then he said he was “forced” into making them. He accepted that it was he who told the story and the police officer wrote his story down. He said some of the statements were taken from the girl’s story. Then he said his mother was not with him, only the CID officer. When asked whether the officer forced him, he said “no”. He confirmed the police read back the statement to him. He accepted the last paragraph of the statement to be all his. The statement was tendered into evidence.

In re-examination he only confirmed that he did not hold onto [the complainant]’s clothes but that she had them on.

The foregoing were all the evidence by the prosecutions and by the defendants.

The Law

The relevant penal provisions were:-

1.	Section 30:-

“Any person who aids …….. the commission of a criminal offence shall be guilty as an accomplice and may be charges and convicted as a principal offender.”

The necessary element to be proved by the prosecution is ‘aiding’.

2.	Section 90:-

“Any person who has sexual intercourse with another person:

………… N/A; or
(a)	with that person’s consent if the consent is obtained:

(i)	…………N/A; or
(ii)	by means of threats of intimidation of any kind;
(iii)	………. N/A; or
(iv)	………. N/A; or
(v)	………. N/A; or

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

3.	Section 91:-

“No person shall commit rape.

Penalty: Imprisonment for life.”

The necessary elements to be proved by the prosecution were:-

(i)	Sexual intercourse between persons;

(ii)	With consent but the consent being obtained by means of threats of intimidation of any kind.

(iii)	Penetration.

Agreed Facts

(i)	There was consensual sexual intercourse between Zethric and [the complainant].

(ii)	There was sexual intercourse between Nixon and [the complainant].

(iii)	There was penetration.

Disputed Facts

(i)	That consent was obtained by means of threats of intimidation of any kind.

Analysis of Evidence

[The complainant]’s evidence was that after she had had sex with Zethric he mentioned Nixon to her. He demanded that she has sex also with Nixon. At this she retreated. Then Zethric took hold of her clothes and threatened that unless she had sex with Nixon, he would walk away with her clothes and that she would have to go home naked. She said she was afraid of her father if she was found in that situation. Therefore she had sex with Nixon but that it was against her free will.

In cross-examination she said she consented to sex with Nixon for fear that Zethric would not return her clothes. She remained firm and unshaken. The defendants and in particular Zethric on the other hand admitted in his statement of 29th December 2003 that he held onto [the complainant]’s clothes and demanded that she agree to have sex also with Nixon. There was no mention about the plans that Zethric had been talking about in his evidence in that statement.

Findings by the Court

The Court accepts the evidence of [the complainant] in relation to consent being obtained by threats of intimidation as credible and admits them. The Court rejects the evidence of the defendants as they lacked credibility.

When the defendant Zethric made statements in December 2003 he admitted holding onto [the complainant]’s clothes on the condition that she agreed to have sex with Nixon. Only after she had agreed that the clothes were returned.

He agreed his statements were made by him and were made and taken voluntarily. He could have denied the allegations, being the oldest of the three. But he did not. It is only some two years later and in the witness box that the idea of a plan has been disclosed. Why was it not revealed in the statement by Zethric in September 2003? There can only be one reason why it was not and that is that the story has been fabricated by the defendants.

The Court is therefore satisfied on the evidence that the prosecution has discharged the onus of proof placed on it. The Court is satisfied that consent was obtained by threats of intimidation.

I find the defendant’s evidence to be so distorted and full of inconsistencies that they cannot possibly be the truth. I reject their evidence as being the truth. Upon such finding the Court returned a verdict of guilty and entered convictions against the two defendants for rape and for aiding and abetting rape.

Submissions by Defence Counsel

(1)	Mr Kausiama urged the Court to note [the complainant]’s hesitation or refusals to answer numerous questions posed to her in cross-examination.

In answer to this submission it was apparent that most questions posed were not relevant to the only issue that was in dispute before the Court. Secondly the girl is quite young and indeed at the commencement of the trial when Mr Tevi sought have of the Court to have [the complainant] examined in camera Mr Kausiama did not resist the application but said he was in the hands of the Court. The girl was shy and was slow in understanding what was being asked of her. The Court was under the impression that she was not deliberately avoiding questions and refusing to answer and therefore her not answering questions do not have any bearing or relevance to the issue before the Court.

(2)	Mr Kausiama urged the Court to note that the report was made two months after the event, and only after her father told her to make a complaint.

The answer was clear from the evidence. The matter was brought before the Chiefs who imposed a fine. Only when the boys did not comply did she report the incident to the police.

The defendants did not call evidence to rebut the girl’s evidence. The Court must accept that evidence as the truth and the reason why a complaint was not lodged immediately.

The father still has authority over his daughter who is under the age of 18 years. The girl was 17 years old at the time of the offending. The two boys are unemployed. What would have happened if the girl was pregnant? In the circumstances the father would take responsibility of looking after his daughter and her baby. Under that circumstance does it mean the father should not have any concern over what happened? I think he naturally has.

(3)	That there was no medical report.
The prosecution accepted there was no medical report. But that was not necessary in the circumstances of this case especially when there was an admission.

(4)	That there was no corroboration.

That is also accepted by the prosecution but in the circumstances of the case where the defendants made voluntary admission statements the admission amounted to corroboration.

(5)	That the girl gave the wrong date and agreed that it happened in 2004.

[The complainant] was not given her statement to refresh her memory. She is a shy young girl who is appears to me to be not too educated. She was a student but there was no evidence which school she attended and what level or standard she was at. The offending happened in September 2003 and it has been two years. There is possibility that over the years memories tend to fade away. She eventually remembered during the course of her cross-examination and was quick to apologise and correct herself as to the date of the offending. This argument therefore was insufficient to convince the Court reaching a guilty verdict against the two defendants.

The Court accepted the submissions made by Mr Tevi for the prosecutions that the removal of her clothes by Zethric with a threat to walk away with them unless she agreed to have sex with Nixon, amounted to a threat to intimidate the girl into consenting. As such the sexual intercourse with Nixon was non-consensual and amounted to rape within the ambit of section 90(b)(ii) of the Act. Similarly the Court found on evidence and accepted that Zethric had aided the commission of rape within the ambit of section 30 of the Act.

Sentencing

In sentencing the two defendants the Court considered the following aggravating factors:-

(a)	The offence was committed by more than one person.

(b)	There was a plan between Zethric and Nixon to commit these offences.

(c)	Zethric was her boyfriend and he breached that trust placed in her by [the complainant].

(d)	She was held captive in the circumstances when her clothes were removed by Zethric and he threatened to conceal them and cause her to go home naked.

(e)	The incident occurred at night at an isolated location putting the girl’s life at risk.

The Court accepted Mr Tevi’s submissions that the starting point in this case was 8 years as laid down by the case of Public Prosecutor v. Ali August Criminal Case No. 14 of 2000 as upheld by the Court of Appeal in the Public Prosecutor v. Maslea Scott and Jeremiah Tula.

Mr Kausiama urged the Court to take into consideration to mitigate sentence that facts that –

(a)	The defendants were both young and were first-time offenders.

(b)	They had not used any force or violence.

He submitted that this case must be distinguished from the Ali and Maslea Scott cases in that there was no force or violence used. Further he submitted that Zethric did not owe a trust to [the complainant]. Further that section 30 of the Act places a discretion on the Court to punish the offender based on law and facts. That a person who aids is different from the person who commits rape. He therefore urged the Court to consider imposing a five year sentence.

The aggravating factors far outweigh the mitigating factors. It is correct that there was no physical violence involved but the circumstantial evidence were such that had the girl refused to consent there was real likelihood and possibility that these two defendants would have used such force and physical violence. It is also correct that a person who aids rape is different from the person who actually committed the rape. But again the circumstances of this case are such that Zethric ought to be sentenced as a principal offender. He was the one who implemented the plan from the beginning to its end. He took a very active role in the commission of rape that he ought to be sentenced as a principal offender.

A jail sentence in this case cannot be avoided. The Court adopted the starting point of 8 years. This is to mark the seriousness of the offence. It also marks the public disapproval of such sexual behaviour that appears to be ever on the increase. This high sentence acts as a deterrence to the defendants and to other men and boys.

I consider that in the circumstances the appropriate sentence is 8 years for both defendants. I therefore sentenced Zethric Lampi to 8 years imprisonment and Nixon Simeon to 8 years imprisonment.

However I allow one-third reduction for being young and being first-time offenders.

Secondly I allow a further one-third reduction for having done some customary settlement. That basically reduces the sentence of 8 years down to 7 years and 4 months effectively in jail.

The sentence is calculated as follows in months:-

8 years x 12 months = 		 96 months
1/3 of 12 = 4 months x 2 = 		8
				88 months = 7 years and 4 months

A warrant of imprisonment was issued accordingly.

The Defendants were informed about their rights of appeal.

DATED at Luganville this 13th day of December, 2005.

BY THE COURT

OLIVER A. SAKSAK
Judge