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Public Prosecutor v Peter [2008] VUSC 30; Criminal Case 3 of 2008 (3 April 2008)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Held at Isangel, Tanna)

CRIMINAL CASE No. 03 OF 2008

PUBLIC PROSECUTOR

-v-

ZEBEDEE PETER

Mr Bernard Standish for Public Prosecutor
Mr Jacob Kausiama for the Defendant

SENTENCE

This is the sentence of the defendant, Zebedee Peter. Mr Zebedee, you are from Lounasunan village, Tanna. You are charged with one count of Sexual Intercourse without Consent, Contrary to Section 91 of the Penal Code Amendment Act 2006.

On 1st April 2008, you pleaded guilty to the charge.

The facts are not disputed and are contained in the prosecution brief of facts. They are as follows:

On 12th October 2007, in the area near Paradise View Bungalows, White Sands, Tanna, Peter Zebedee, you had sexual intercourse with Darrall Kidd ("the complainant"), without her consent and knowing that she had not consented to the sexual intercourse.

The complainant is an American citizen who was visiting Vanuatu as a tourist. Although she was 70 years of age (born on 17 October 1936), she was still working part-time as a travel adviser in the United States of America.

At about 3:30pm on 12 October 2007, the complainant walked up the road to Paradise View when she was approached by you. At the time, you had a bush knife in your hand. You placed the bush knife to the complainant’s stomach and asked her if she wanted to be cut.

The complainant began to scream in fear. You pushed her over and down a small hill. You put the bush knife to her throat and told her that you would kill her if she screamed again.

You sat on top of the complainant and forcefully removed her trousers and panties. You removed your own pants and tried to put your penis inside her vagina. At this time, the complainant told you that she could be your grandmother.

Eventually, you were able to forcefully put your penis inside the complainant’s vagina. You tried to kiss her on the face. You moved inside her until you ejaculated. You were not wearing a condom. When you finished, you pulled your pants up and ran away.

The complainant walked slowly back to the Bungalows. She told the managers what had happened to her.

The complainant went to the Lenakel Hospital for examination and treatment. The doctor who examined her determined that she had abrasions on her elbow where she had fallen over. The doctor also determined that she had small abrasion near her clitoris and a tear in her intoitus. The doctor concluded that the injuries seen were consistent with a physical and sexual assault.

The complainant was able to provide a description of you. Police arrested you and you gave a statement to them. In that statement, you admitted the allegations. You said that you committed the offence because your mind was filled with bad thoughts.

The prosecution submits that they will rely on the finding judgment of the Court of Appeal in the case of PP v. Scott and Tula. The starting point is 5 years imprisonment. The Court in its sentencing process is to find if there any aggravating feature so as to increase the sentence of imprisonment to reflect that aggravation and seriousness in the commission of the offence, and, to balance the aggravation with mitigating factors.

The prosecution submits that in this case there are three aggravating factors:

• You were armed with a weapon (a bush knife).
• You used the weapon (bush knife) to commit the crime.
• The age of the complainant. She is 70 years. The victim is an old woman. She is a vulnerable person. She told you that she could be your grandmother.
  

The prosecution submits that in its sentencing of the defendant, the Court has to consider the Impact of such a crime outside Vanuatu and its impact in Vanuatu on the tourism development. The prosecution says that this is not to say that the Court must deal with the sentence of foreigner differently than that of a Ni-Vanuatu.

The prosecution emphasizes that the main aggravating factors are the presence and use of a weapon in the commission of the crime and the very old age of the victim complainant.

The prosecution concedes that the Court must take into consideration of the following mitigating factors:

• The defendant is a first time offender.
• The defendant admitted what he had done to the Police
• The defendant pleaded guilty at the first opportunity given to him.
  

Your Counsel submits that you are 21 years old. You are married with 2 children. You are a first time offender. You have no previous conviction. You pleaded guilty to the offences at the first opportunity given to you. You are a gardener.

Your Counsel told the Court that on the day of the offence, after you returned from the sea, you followed the complainant because no one else was around.

You had bad thoughts about the complainant. From there you committed the offence on the complainant in the way as alleged in the charge.

You accept you have a weapon with you (a bush knife). You accept there is a big age difference between you and the complainant of the USA citizen.

Your Counsel told the Court that he agrees with what the prosecution says on the impact of crime committed on the visitors in Vanuatu and outside Vanuatu but says however, that there are other matters done by Vanuatu or in Vanuatu that can also have an impact on Vanuatu. Your Counsel told the Court that the Court must sentence you on the basis of the guideline judgment set in the Court of Appeal in the case of Scott and Tula.

In sentencing you, I remind you that sexual Intercourse without Consent of a complainant is always a most serious crime. I apply the guideline judgment of the Court of Appeal in PP v. Scott and Tula, Criminal Appeal Case No.02 of 2002.

In such a crime, an imprisonment sentence is necessary for a variety of reasons. First, to mark the gravity of the offence. Second, to emphasize public disapproval. Third, to serve as a warning to others. Fourth, to punish the offenders. The last but no means the least, is to protect woman. The length of the sentence will depend on the circumstance of the case. This case is a category of case the starting point of which is 5 years.

In this case, the following aggravating factors are listed below:

(1) A weapon is used (bush knife) to frighten or wound the victim. The bush knife was held on her stomach.
(2) The victim is very old. She is 70 years old.

The sentence is increased to 8 years to reflect the aggravation and seriousness of the offending.

That sentence of 8 years is to be reduced in the light of the following mitigating factors:

• You are a first time offender
• You admit your crime to the Police
• You pleaded guilty at the first opportunity given to you by the Court.
  

The mitigating factors is reflect to an account of 2 years to be deducted from the total sentence of 8 years imprisonment.

I Order that you serve a term of 6 years imprisonment with immediate effect. This sentence is to be served on both counts concurrently.

14 days to appeal.

Final Observations

Chiefs – local authorities and people of Tanna must be mindful of the impact of such a crime committed on visitors on the Tanna Island and the Republic of Vanuatu.

Talk and educate your people as citizens of Vanuatu to understand the chance people of Tanna and the whole Vanuatu have in terms of Tourism Development.

All persons in Vanuatu whatever, their race, color, religious beliefs, political opinion, and whether they are citizens or visitors, have fundamental rights enshrined in the Vanuatu Constitution and protected therein.

These observations are also very relevant to people living in other islands of the Republic.

DATED at Isangel, Tanna this 3rd day of April 2008

BY THE COURT

Vincent LUNABEK
Chief Justice