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Public Prosecutor v Sam [2010] VUSC 30; Criminal Case 31 of 2009 (14 May 2010)

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

Criminal Case No. 31 of 2009

PUBLIC PROSECUTOR

-v-

FREDERICK SAM
RUSSEL KOULO

Coram: Justice N. Dawson

Counsel: Mr. T. Garae for the State
Mrs. Loughman for the Defence

Date of Sentence: 14th May 2010

SENTENCE

1. Mr. Sam and Mr. Koulo, you both appear today for sentencing on the charge of sexual intercourse without consent.
   
2. The facts of this matter are that on or about the 15th March 2009 at about 4.00 am a woman was raped after having kava at a kava house. She was waiting for a taxi, when a group consisting of others and the two of you approached her. She was frightened and ran behind the house, but you all ran after her and held her. She was too frightened to call out and because there were too many of you she did not resist. She was also threatened by two of your group not to shout or make a noise otherwise she would be slapped. She was dragged to a place which caused several injuries to her and pushed onto the grass and held down and three of you had sexual intercourse with her. A police vehicle drove passed which was fortunate for the victim as you all ran away but were later located by the police.
   
3. I note that you are 16 and 15 years of age at the present time and neither of you have previous convictions. I have read that Probation Reports prepared for each of you and also submissions from your counsel. In sentencing you is necessary to take into account the interests of the victim that you offended against. I need to impose a sentence that will promote within you a sense of responsibility so that you learn that this behavior was wrong and cannot be tolerated in this community. Women in this community are entitled to be safe, and are not safe because the behavior of people like you, behaving the way you did that night. The Court will not tolerate this behavior. There are aggravating factors to your offending. The first was that you threatened her with violence to keep her quiet and you dragged her to a place where she was raped and that caused her some injuries. The victim was also particularly vulnerable because she was on her own and she was hunted down and gang raped by the pack of you. You should all be ashamed of your behavior notwithstanding your young ages. You behaved like cowards and it should be a matter of great remorse to you that you behaved in such a way.
   
4. The mitigating factors to your offending are that you were both 15 years of age at that time and you both entered early guilty pleas. You also both expressed remorse for your offending and neither of you have previously offended.
   
5. Mr. Sam, your Probation Report indicated that you showed remorse for your actions and that remorse is considered to be genuine. You also performed a custom ceremony to the victim and you said you gave VT50, 000 along with your co-offenders plus one pig and 2 bundles of garments, and two mats. The Program Coordinator of Wan Small Bag is willing to provide sexual health counseling and other programs to assist you.
   
6. Mr. Koulo, your Probation Report notes that you were sorry for committing the offence that you did, you are willing to undertake a literacy program to improve your reading and writing skills and willing to undertake spiritual counseling. According to the Probation Report writer your remorse expressed was genuine you also took part in providing compensation by custom to the victim.
   
7. The starting point for this kind of offending is 5 years imprisonment. After taking into account the aggravating and mitigating factors that I have mentioned, in particularly your ages, it is appropriate to reduce that to a term of imprisonment of 2 years. You are therefore both sentenced, to imprisonment for 2 years each. I then better take into account your young ages and I suspend that sentence for 2 years from today. What that means is that if you both keep out of trouble within this 2 year period, you do not go to prison. But if you offend again and come back to Court that sentence of imprisonment maybe imposed and you will go to prison for 2 years.
   
8. Your future in is your hands. Prove that you can behave yourselves and be a good citizens and all be well for you. But if you do not and you offend again within 2 years and come back here you know what will happen. You will go to prison. I impose a sentence of community work of 250 hours upon each of you, and I impose a sentence of supervision for 2 years from today. The conditions for supervision for you both are:
   
   1. Undertake sexual health counseling as directed by the Probation Officer.
   2. Undertake any other program as directed by the Supervising Probation Officer.
      
9. You have the right to appeal the sentence. For any appeal you must lodge a notice of appeal in 14 days of today’s date.
   

DATED at Port Vila, this 14th day of May, 2010.

BY THE COURT

N. R. DAWSON
Judge