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

Criminal Case No. 08 of 2005

PUBLIC PROSECUTOR

–v-

KENSEN NOEL

Coram:	 Justice Treston

Mr. Timakata for Public Prosecutor
Mr. Kausiama for Defendant

Date of Hearing: 4th March 2005
Date of Sentence: 4th March 2005

NOTES OF ORAL SENTENCE

Mr. Noel you appear for sentence on a charge of rape and that is one very serious charge because the law provides that the maximum potential penalty is life imprisonment. The facts were set out by the Public Prosecutor and they indicate that on New Year's Day this year, the 1st of January 2005, at Vania village, Epi, in the early hours of the morning you raped the victim Luca Jack who was only 11 years of age. She does not turn 12 until later this year. You used physical force and intimidation to obtain your sexual gratification. You were intoxicated with liquor. You physically forced her by pulling her clothes and hands into the bush under a mango tree. You held her hands tightly and raped her 3 times. You forcefully pushed your penis into her vagina. You perform oral sex on her as well as fingering her and you tried to force her to suck your penis. She experienced extreme pain the whole time and was eventually released by you. She reported this ordeal to her friends and her parents.

The Prosecutor has helpfully pointed out to me the legal definition of rape, the maximum penalty and the principles set out in the Public Prosecutor v Ali August CC14 of 2000. That was a case subsequently approved by the Court of Appeal and I will have more to say about that shortly. The Prosecutor submits that there are aggravating features which must be considered-physical force, threats and intimidation, repeated act of rape, further sexual indignities and the age of the victim. The submission is made to me that a finite sentence of 6 years imprisonment should be imposed.

On your behalf, I am advised that you are 22 years of age, single and living in Epi. You have never been in trouble with the Court before and thus you are a first offender. You pleaded guilty at the first available opportunity which, the defence submits, is a sign of remorse and contrition. You apologize to the Court, the victim and the community. You admitted being intoxicated at the time of the offence. You were cooperative and you have spent 1 month in custody. The defence refers to the aggravating factors which were set out in the Ali August case and indicated that there must be distinction made. It is submitted to me that one-third of the sentence should be removed for the early guilty plea and that I should give you appropriate credit for the fact that you are not a person who would normally commit such an offence but that you were intoxicated.

I have already said that the maximum potential penalty is life imprisonment. I have carefully considered the submissions made and note that sentencing generally involves a balance of aggravating and mitigating factors. The following factors are regarded as aggravation in my view. First, the fact that the offence involved violence, second, that there was significant pain inflicted on the victim, third that the victim was particularly vulnerable because of her young age of 11 years, four the fact that there was repetitious behaviour in that that she was raped on three occasions, and finally the fact that there were additional indignities performed upon her.

The mitigating factors include your plea of guilty, the remorse that you have now expressed and your previous good character. Of course the Court must not take into account by way of mitigation the fact that you at the relevant time were affected by the voluntary consumption of alcohol.

The learned Chief Justice in the Ali August case also talked about the offence of rape when he said this

"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"

The learned 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."

The learned Chief Justice went on to list a number of aggravating features. They include ones that I have already referred to. First that violence was used over and above the force necessary to commit the rape. Next the rape was repeated. Next the victim was subject to further sexual indignities or perversions. Next the victim was very young and clearly there was pain inflicted upon her as well. 

The learned Chief Justice said this

"Where any one or more of these aggravating features are present the sentencing should be substantially higher than the figures suggested in the starting point. 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".

Previous good character, he said, is of only minor relevance.

Clearly your plea of guilty has avoided putting the victim through the trauma of giving evidence at trial.

It is my view that there are significant aggravating features in your case. In my view they definitely mean that the starting point of 5 years needs to be increased significantly and in view of the aggravating features which I have pointed out already and which the learned Chief Justice emphasised in his decision of Ali August, I consider that the appropriate starting point in your case is 9 years imprisonment. Of course as the Ali August decision pointed out I give you credit for your plea of guilty, that is generally recognised by a deduction of one-third. From the 9 years I deduct one-third for your plea of guilty leaving a figure of 6 years imprisonment. From the 6 years I deduct 1 month for the time that you have already been in custody. 

Consequently I sentence you in this way. Having pleaded guilty and dealing with the matter in the way that I have discussed, you are today sentenced to imprisonment for 5 years and 11 months.

You have 14 days to appeal against that decision should you not be happy about it and your lawyer will tell you the details of it shortly.

Dated at PORT VILA, this 04th day of March 2005

BY THE COURT

P. I. TRESTON
Judge