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Public Prosecutor v Black [2009] VUSC 17; Criminal Case 57 of 2008 (27 March 2009)

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

Criminal Case No. 57 of 2008

PUBLIC PROSECUTOR

V

TOM BLACK

Coram Justice N. R. DAWSON
Date of Sentence: 27th March, 2009

Counsel: Ms. Laume for Public Prosecutor
Mr. Bennett for Accused

SENTENCE

1. Mr. Black you appear in Court today for sentencing on two charges of Rape. You were found guilty of both of those offences at trial. The facts of your offending are as follows, you are presently 24 years of age and at the time of the offending you were 23 years of age. The victim of your offending was a student in Port Vila residing in Fresh Wota. The incident happened when the victim and her relations left Trader Vics nightclub where they had been drinking and dancing and went to Fresh Wota 4. On their way home early in the morning on 5th April, 2008 they came across a group of persons including yourself who shouted, yelled and approached them. One of the group took a girl with the victim and you took the victim herself by putting an arm around her shoulders and with your other hand you held a big knife to her neck. Another boy in your group was holding a small knife near her back. You both threatened her that she was to go with you or she would be stabbed with a knife. She was also threatened that if she cried out, she would have her neck cut off. You pulled the victim to an area behind Fresh Wota School and forced her to remove her clothes so you could have sex with her even though she indicated she did not want to do this. You then tried to force yourself upon her by removing your trousers and panties and were about to attempt to have sex with her when another of your group came and said something to you. You then told the victim to put her clothes back on and you took the victim further down Freshwota 5 towards Sam Siko’s area and into the bushes. The victim followed you because she was scared because of your threats. In those bushes you removed her clothes and had sex with the victim.

2. During the trial the victim gave evidence that during sexual intercourse she felt considerable pain in her vagina and she also gave evidence that she bled from her vagina as a result of your having sexual intercourse with her. After having sex she wanted to put her clothes back on but you told her not to and then later you had sexual intercourse a second time by inserting your penis into her vagina. You both later left that particular area because it was day light and the victim was able to leave you and go to her home.

3. I have read the submissions that have been filed in the Court by the Public Prosecutor and also by defence counsel. I have also heard defence counsel address those submissions on your behalf today. There are a number of factors I need to take into account when I sentence you Mr. Black. The first is that you need to be held accountable for the harm that you caused to that victim, to her family, and to the community as a whole. I denounce your behaviour and make it absolutely clear to you that this behaviour cannot be tolerated in any civilized community. It is necessary for offences of this nature to impose a sentence of imprisonment to act as deterrent to make it clear to you and others that this sort of offending will result in imprisonment.

4. People in our community are entitled to be protected by the Court from this type of offending. Young women in our community have human rights the same as anybody else. You breached that young woman’s human rights twice by forcing her to have sex against her will. Women are entitled to be free of this sort of suffering and indignity. And it is necessary for me to impose a sentence to reflect the severity of your offending. Sexual offending is far too prevalent in this community and young women are entitled to be protected by the law and a sentence needs to be imposed to reflect that need.

5. There are a number of aggravating features to your offending. The first is the actual and threatened violence by you of forcing the victim to go with you and holding a large knife to her neck and threatening to cut her neck if she did not comply with your wishes. The next is the harm caused to the defendant. She clearly suffered injury because of your offending and bled as a result of your offending. Your offending was cruel and you repeated your rape of her and you detained her against her will for some hours. The victim was particularly vulnerable, she is a small young woman who had no defence against a strong young man such as yourself. In mitigation you have not offended before and you have previously been a person of good character. You have also conducted a custom ceremony with you community and the community of the victim. You have indicated and shown some remorse by conducting the custom reconciliation ceremony with those two communities. You have also expressed remorse through your actions.

6. Having taken everything into consideration Mr. Black it is my view that the appropriate starting point to sentence you to imprisonment is as indicated by Public Prosecutor v. Ali is a term of imprisonment of 8 years. I have to take into account the aggravating factors of your offending and it is appropriate to increase your sentence by a further 2 years. Taking into account the mitigating factors that I have already mentioned it is appropriate to then make a reduction of a further year. You are therefore convicted and sentenced to a term of imprisonment of 9 years on the first offence.

7. For the second offence you are also convicted and sentenced to a term of imprisonment of 9 years as both offences were committed during the one course of conduct and the second offence is an aggravating feature of the first. From the information available to the Court it appears that you have served approximately 10 months in prison already. You therefore have a balance of 8 years and 2 months to serve from today.

8. You have the right to appeal this sentence. For any appeal you must lodge a notice of appeal within 14 day of today’s date.

Dated at Port Vila, this 27th day of March, 2009

BY THE COURT

N. R. DAWSON
Judge