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Public Prosecutor v Rarip [2006] VUSC 8; CRC 073 2005 (31 January 2006)

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

Criminal Case No. 73 of 2005

PUBLIC PROSECUTOR

–v-

SOLOMON RARIP

Coram: Justice Treston

Mr. Obed for Public Prosecutor
Mr. Bartels for Defendant

Date of sentencing: 31 January 2006

SENTENCE

Mr. Solomon Rarip, you today face sentence on 2 counts of incest. Each of those offences carries with it the potential under section 95 (2) of the Penal Code Act of 10 years imprisonment. So the law clearly regards the offences as serious.

The Prosecution submitted to me that a custodial sentence of 4 years imprisonment should be a starting point to be reduced for mitigating factors.

On your behalf various factors were put forward, why the Court ought to be generous to you.

The incident happened on August of last year, when the victim's mother was not at home. You came across the victim when she was sleeping and you proceeded to take off her clothes. When she woke up, you were already holding her and you penetrated her, committing the offence of incest. You repeated that incident in September 2005 and in fact the summary says that it happens twice in that month. The matter was reported to the Chiefs who had a meeting and fined you and you did not pay that fine.

You are 70 years of age and are a first offender. Through your lawyer, you expressed to the Court your genuine remorse. There was some talk about you and some group of young people, including the victim, looking at what could be described as pornographic material and you being unable to deal with the situation and thus committing the offences. But on these occasions clearly the victim was simply sleeping and was awoken by you and you committed the offences. The victim has now moved away from the area where you are and you have described her in various ways including flirtatious, provocative and inquisitive. You say that she does not appear to be traumatized by what has occurred between you and her and she is now in a relationship with a younger person. I am disappointed in the Prosecution who was specifically asked to obtain a victim impact report. That has not been presented despite my specific request and what you say cannot thus be gainsayed. However, as a matter of principle, it is totally inappropriate for a grandparent to have sexual intercourse and thus commit incest with a grandchild. You have certain health concerns that have been detailed such as high blood pressure, a stomach ulcer and haemorrhoids and the last of those is not particular concern but you submitted through your counsel that prison will be difficult for you. You have a partner who is awaiting your release to continue a relationship.

You must be held accountable, as a matter of principle, for offending in this way. Society will never condone incest which can have long lasting effects on victims despite what you have said about the victim. I must denounce your conduct particularly someone of your age and deter you and other like-minded offenders from this sort of criminal activity. I must protect this victim and the community generally.

By way of aggravation there are, of course, the actions themselves and the warning that you gave the victim not to tell anyone what had happened. There was a particular abuse of trust by you as a grandparent by violating your grandchild. There was the vulnerability of the victim in the particular circumstances of her being asleep when you accosted her and her vulnerability as a 15 year old. Clearly there was a significant disparity between your age and her age which was always an aggravating feature. Clearly there were elements of premeditation particularly on the second occasion when you went and committed the same crime again.

By way of mitigation, of course, I take into account your advancing age of 70 years. I take into account your plea of guilty which has avoided the victim from suffering the trauma of giving evidence about these distasteful matters in Court. I take into account your expression of remorse and the fact that you say that you are willing to make good and pay the custom settlement. The fact that you haven't done so, weighs a little with me I must say. Finally, I take into account your previous good character as demonstrated by your unblemished criminal record. Of course I say that I take into account your health concerns but no doubt now that I mention them in this judgment on sentence, the prison authorities can be aware of them.

Because there were two offences and there were elements of repetition, it is my view that the starting point must be somewhat higher than others. Imprisonment is the only option particularly in view of what the Court of Appeal said in the Public Prosecutor -v- Gratien Bae Criminal Appeal Case No.3 of 2003. I know that that case dealt with a parent but you are a grandparent and the same principles undoubtedly apply. The Court in iterating matters of principles said this: -

"The principles are simple. Parents (Grandparents) who use their children for their own sexual gratification will go to prison. It is almost impossible to imagine circumstances in which that will not be the necessary response. This court would anticipate that it will be in the most truly exceptional circumstance, which are clearly and unequivocally demonstrated to exist, that this will not apply. We had considered that there were sufficiently clear statements of the principles from this Court that there could have been no doubt about the situation but there have been drawn to our attention an alarming number of cases at first instance where that correct approach has not been followed."

The Court of Appeal went on to say that a sentence of 3 to 5 years imprisonment would have withstood appeal and that involved 1 charge of incest and you face 2. Because of that, my view is that the appropriate starting point is 7 years imprisonment for the two offences. I reduce that figure by one-third for your plea of guilty and I allow a further reduction for the almost two months of you being in prison already and another further small allowances for other mitigating factors. My view is that the appropriate sentence for you today when all of that has been taken into account is 4 years and 2 months imprisonment. You are sentenced to that term on each offence and although I might be justified in making those terms cumulative, I direct that they may be served together, that is they are concurrent, so you from today will serve 4 years and 2 months imprisonment in total. Within that I have also made the appropriate allowance for your expressions of remorse, your resolution to pay the custom settlement fine in the future and your health issues.

You have 14 days to appeal that sentence if you are dissatisfied with it.

Dated AT PORT VILA, 1 February 2006

BY THE COURT

P. I. TRESTON
Judge