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Public Prosecutor v Seth [2005] VUSC 68; Criminal Case No 027 of 2005 (8 June 2005)

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

Criminal Case No. 27 of 2005

PUBLIC PROSECUTOR

–v-

TOTO DAVID SETH

Coram: Justice P I Treston

Mr. Kalmet for Prosecution
Mr. Bartels for Accused

Date of Sentencing: 08 June 2005

SENTENCE

Mr. Toto David Seth, you appear for sentence today of one charge of Rape. That is a very serious charge and it is made so particularly by the maximum penalty which is potentially there namely life imprisonment. The victim at the time was your seventeen year old girlfriend and you were twenty one then and are now twenty two years of age.

The relationship had only been, it seems, in existence for about one month or so. You were driving a bus when you picked the victim up at about 3pm on 14 April 2005. Your brother was also in the bus and took over the driving because of your drunken condition. The victim asked to be dropped off but you told her that she should come and spend the night with you. In her statement she said that when the bus stopped outside your place, you asked her to jump down but she didn't want to follow you but felt she had to because you had her school bag, When you went into an empty room of the house where no one else was, you asked her to take her clothes off but she told you she didn't want to because she was still a school girl. You removed her clothes including her panties and pushed her down on to the floor and forced her to open her legs. You started to kiss her and forced her to hold your penis and then you pushed your fingers inside her vagina. She tried to stop you doing that but you kept on. Finally you lay on top of her and penetrated her vagina with your penis. That happened only once and she, according to her statement, suffered pain from the placing of your fingers into her vagina and also it also hurt her when you forced your penis inside her because she had never had sex before. At about 11pm your brother dropped the victim back to her house.

In her statement she said that she wasn't willing to have sex with you. At the time she loved you as a boyfriend but did not want to have intercourse and she wanted you to answer for your behaviour in Court as you are now doing. She contended that the matter had some plan to it because your brother was the one who came with the key of the house and opened the empty room.

The Prosecutor has submitted that, in accordance with the appropriate case law guidelines, the appropriate sentence after allowing for any deductions should be 5 years imprisonment. The Prosecutor refers to aggravating features of elements of force to achieve sexual intercourse, elements of planning involved and the abuse of the victim at seventeen years of age and still at school.

On the other hand, your lawyer submitted to me that there were mitigating factors which the Court should take into account to reduce the sentence to between two and three year's imprisonment and even to suspend such a sentence. I was asked to take into account the mitigating factors of your plea of guilty, which avoided a hearing and spared the victim from reliving the details in Court and which also was an indication of your contrition and remorse. It was submitted that the fact of your relationship with the victim was a mitigating factor and that from her statement she still seems to regard you favourably. It was submitted that the degree of force was minimal and that you are relatively young. It was submitted that you are a first offender and that your intoxication was a mitigating factor.

When I sentence you I must take into account various factors, I need to hold you accountable both to the victim and to society in general because, as your lawyer has conceded, offences such as this are all too prevalent. I must denounce your conduct and deter you and other likeminded offenders from committing such offences. I must protect this victim and the community at large from such serious offending.

Sentencing generally involves a consideration and a balance of aggravating and mitigating factors. The aggravating factors are as follows in my view. There were elements of coercion to force the unwilling victim to go with you and attend the house. There were elements of force and violence used in attaining your ends. There was, from the victim's own statement, pain inflicted upon her because of the fact that she had not had sex before. The pain was from you forcing your fingers into her vagina and then from forcing your penis into her. It seems also, and I agree with the Prosecutor here, that there were elements of planning to this incident despite your intoxication. The victim was somewhat vulnerable because of her young age of 17 years and in fact she was a school girl and, despite what your lawyer said, the fact that you had a relationship of boyfriend and girlfriend involves a breach of trust when you took advantage of a clearly unwilling victim.

On the other hand, as your lawyer has submitted, I give you credit for your plea of guilty which I have already said avoids the trauma of the victim having to give evidence in Court and reliving a very unfortunate incident and to an extent that plea indicates your remorse for your behaviour. You did not cause any injury to the victim but clearly caused her pain. Contrary to and despite what was submitted by your lawyer, it does not seem that the victim holds any favourable feelings towards you now. Her statements to the police indicated that she loved you as a boyfriend then, but not to the extent of having sex and she wanted you to appear in Court to answer for your actions. I do not find that your loss of that relationship is a mitigating factor. It was submitted that your intoxication was a mitigating factor, let me say right now, loudly and clearly, that the Court must not take into account by way of mitigation the fact that an offender at the relevant time was effected by the voluntary consumption of alcohol. That is simply not a mitigating factor. I do not accept that you are relatively young. As the Prosecutor has said you were twenty one at the time and now twenty two years of age. The Court accepts that there was no excessive use of force.

I am assisted by the learned Chief Justice in the case of the Public Prosecutor v August Criminal Case no. 14 of 2000; [2000] VUSC 73 where his Lordship said: -

"The offence of rape is always a serious crime. Other than in wholly exceptional circumstances rape calls for an immediate custodial sentence. 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 already mentioned some of those factors in my remarks to you earlier. His Lordship then said: -

"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."

His Lordship set out various aggravating features which can include in your particular case, the pain caused to the victim by virtue of the force used, and the fact that the victim was relatively young and the fact that some effect has been occasioned to her as a result of the rape. Her mother has today confirmed that the victim was not only upset at the time but has also been frightened since then and her parents have had to drop her off and pick her up from school. It is my view that that coupled with the breach of trust of the relationship which you formerly cherished, means that the starting point should be increased in my view by approximately one year. His Lordship said in the August case that previous good character is of minor relevance and I do not find that this is a wholly exceptional circumstance which could involve suspension of any sentence. The Court of Appeal in the Public Prosecutor v Gideon Criminal Appeal Case no. 03 of 2001, [2002] VUCA 7 said:

"It would be in the extreme of cases that suspension could ever be contemplated in the case of sexual abuse"

This is not an extreme nor a wholly exceptional circumstance and it is my view that a suspension would be inappropriate and such a sentence would be inadequate.

As I have already said, I have arrived at a sentence of six years imprisonment as a starting point. I reduce that by one third to recognize your plea of guilty and the other mitigating factors. There are no elements involving any consideration of compensation by custom under section 119 of the Criminal Procedure Code [CAP. 136]. You are today sentence to 3 years and 10 months imprisonment which also takes into account the two months you have been in custody.

You have 14 days to appeal that sentence if you are not satisfied with it.

Dated AT PORT VILA, this 08th day of June 2005

BY THE COURT

P.I. TRESTON
Judge