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Public Prosecutor v Richard [2014] VUSC 37; CR 15 of 2014 (8 May 2014)

IN THE SUPREME COURT OF THE REPUBLIC OF VANUATU
CRIMINAL CASE No.15 OF 2014
(Criminal Jurisdiction)

PUBLIC PROSECUTOR

v

MANUEL RICHARD

Corum: V. Lunabek CJ

Counsel: Mr Tristan Karae for Public Prosecutor
Mr Brian Livo for Defendant

SENTENCE

1. Manuel Richard, you are here today for sentence after being convicted and found guilty to 1 count of committing sexual intercourse without consent. You pleaded not guilty to that count. You accepted that you had sexual intercourse with the complainant in the early hours of 25 December 2013 on the island of Tanna at NelykanianNakamal. You contended that it was a consensual sexual intercourse. After the trial, you are convicted on the said count in the court's verdict dated 11 April 2014.
   
2. You are now sentenced on facts as found by the court the summary of which is set out below:
   
   • On or about the 24th of December 2013, youth members of BreakThrough Church organized some activities in the compound of the Church at Epigianen village, Tanna.
     
   • The activities included singing and skit plays, music and dancing. They also cooked meat and food for church members.
     
   • The complainant was present as she had joined the youth members of the church in these activities at the Christmas Eve of 2013.
     
   • Manuel Richard, you were also present during the youth activities at the Church compound on the night of the Christmas Eve 2013.
     
   • You were drunk and slept on a table near the speaker.
     
   • There is also a robinet (water tap) outside the table where the speaker was. The robinet is situated some distance from the table where the speaker was.
     
   • In the early morning of 25th December 2013 you sent Ruth to come over to ask for the complainant's phone number. The complainant responded by saying "mi no gat time".
     
   • You lied to the complainant's to get her to go down to the robinet (water tap) to see Ruth.
     
   • On her way, she took out her phone and used its torch light to make her way down to the robinet.
     
   • You run behind her and took her mobile phone from her and grabbed her and lifted her up and carried her away.
     
   • She did not see anyone else there.
     
   • She kicked out for you to let go of her.
     
   • She could not call out as you blocked her mouth with your hands.
     
   • She was still being carried by you when you broke the buttons of her trousers.
     
   • You smelt like alcohol that night.
     
   • You took her to a nakamal called Nelykanien.
     
   • She felt you were forcing her to have sex with her.
     
   • You put your hands on the buttons of her trousers andtore them and at the same time, you put her down on the ground and had sexual intercourse with her.
     
   • The complainant told you "yustapmekem wan fasinia long me" and you responded by threatening her "yuwantempispis" ("do you want to urinate").
     
   • The complainant was scared when you threatened her "mi fraitsei by hemi killim mi" so she just let you havesex withher.
     
   • She felt pain at that time of intercourse.
     
   • The complainant screamed "awe mama" several times. Shewas distressed that night. She called out for help.
     
   • She saw Henry Kauna and called out to him "Kauna go talem long Manolu come traemluk Manuel". You admittedthat thecomplainant called out "smolnomo" for help.
     
   • Then a flashlight came in their direction and you ran.
     
   • The complainant ran and jumped over the gate of her sister's house.
     
   • She cried, called her sister and told her sister of what you did to her atabout 5.00am in the morning of the 25thof December 2013.
     
   • She was examined by a Mid-Wife. The Complainant's left side of her face was slightly swollen. She was still menstruating at the time of intercourse. She experienced pain when the Mid-Wife tried to examine her body with speculum. This is entirely consistent with her account of being forced to have sexual intercourse against her will.
     
3. When I consider your sentencing, I take into account of the pre-sentence report filed by the probation officer. I also consider the submissions of the Public Prosecutor and those of your lawyer.
   
4. The report revealed that you have regretted committing the offence. You also stated that the main reason for committing the offence was due to over consumption of alcohol at that time. You stated further that when you were with the complainant girl at that time, you saw the button from her trousers fell open, which made you tempted to commit the offence.
   
5. Sexual Intercourse without consent is a very serious offence. It carried a maximum penalty of imprisonment for life. The maximum penalty imposed by law reflect the seriousness of the offence. Your offending in the present case, is aggravated by the following factors:-
   
   • You were under the influence of alcohol
     
   • Your inability to control your sexual urges/desires
     
   • The age disparity between the complainant and yourself 15 and 18
     
   • There was planning on your part. You requested the complainant's Mobile telephone number. The complainant refused to give her number. You then deceived the complainant to get away from the other youths and grabbed and carried her away to Nelikaniannakamal.
     
   • You useforce and threats when she refused to have sex.
     
   • Impact of the offending on the girl complainant. The report says that the writer could not get in touch with the complainant and her families. However, the Counselling officer for Lycee Louis Antoine de Bougainville has described the following: "since the victim return to school, she could not concentrate on her studies and the school vehicle had to drop her off to recover. Two days later, it was evident that she has not fully recovered mentally... the complainant has fainted twice in school. The school is also helping her with psychological counselling to recover from what she has gone through.
     
6. I accept the appropriate starting point of the sentencing in a case such this is 5 years imprisonment and I lift that to 7 years after considering the aggravating factors based on the following guideline judgments:
   

-Public Prosecutor –v- August [2000] VUSC75; criminal case No.14 of 2000 (28 November 2000);

-Public Prosecutor –v- Scott [2002] VUCA29; CAO2-02 (24 October 2002;

-Public Prosecutor –v- Gideon [2002] VUCA 7; Criminal Appeal case 03 of 2001 (26 April 2002)

-Application of the guideline judgments in other cases including:

-Public Prosecutor –v- Pierre [2012] VUSC 206; Criminal case 66 – 12 (12 October 2012);

-Public Prosecutor –v- Jimmy [2013] VUSC 51; Criminal case 03 – 13 (12 April 2013);

-Public Prosecutor –v- James [2013] VUSC 53; Criminal case 01 – 13 (17 April 2013).

-Public Prosecutor –v- Koata [2009] VUCA 36.

7. As in other previous like cases, the court condemn in the strongest terms your behaviours and offending as they are unacceptable anduntolerable in the Vanuatu society. Again only custodial sentence is justified. Here suspension of the sentence is not and cannot be justified. Custodial sentence is justified for the following reasons:
   
   • (i) It reflects the seriousness and gravity of your offending.
     
   • (ii) The public disapproves this type of offending.
     
   • (iii) It sends warnings to others in the society who will intend tocommit same offence to go to custody.
     
   • (iv) It punishes you for your serious offending coupled with theaggravating circumstances.
     
   • (v) It is a measure to protect girls, children in general and vulnerable people in the society.
     
8. In mitigation, I take into account what your lawyer tells the court in his submissions on your behalf. The report shows that you are 18 years of age. You are from Ipikanien village in Tanna. You are the third youngest in a family of eight children. Your father died when you were in year 10 in 2012. You continued your education until year 10. You stopped schooling because your mother is too old and none to support you financially in your education. Your ambition is to have your own bungalow business in future. You have good relationship with your family and members of the community. You consumed alcohol and smoked cigarettes when you got the money to purchase them. You are a member of Living Water Church.
   
9. You will turn 19 in November this year 2014. You are a first time offender. You were arrested and remanded in custody on 16th January 2014 and kept in there until you are sentenced today.
   

10. It is noted you have regretted committing the offence.You provided the main reason for committing the offence was due to over consumption of alcohol and also that when you were with the girl victim at the time, you saw the buttons from her trousers fell open, which made you more tempted to commit the offence. I do not accept the reasons for your offending. The effect of alcohol on you at the time of the commission of sexual intercourse without consentis an aggravating factor to that offending. It cannot be a mitigating factor. Your inability to controlyour sexual urges or desires is not an excuse for offending. It is not a mitigating factor.

11. It is reported that you are willing to change as you have learnt your lessons. That is a matter for you. Keep up to your words, if not, you are now warned that the next time you commit the same offence again, you will spend the rest of your life in custody. You attempted to perform a custom reconciliation ceremony to the complainant and her family. The complainant and her family refused such a custom reconciliation ceremony. I accept that you intended to perform the custom reconciliation ceremony. However, you need to understand that is a matter entirely for the complainant and her family. Your lawyer informs the court that the family of the complainant accepts the custom reconciliation ceremony after you were convicted and remanded for sentence. I take it that is now the position.

12. On balancing between aggravating and mitigating factors, I give a total allowance of 6 months for your young age and any other mitigating matters. I take also into account the period you have already spent into custody. Your end sentence is 6 years and 6 monthsimprisonment which is deemed to start on 16 January 2014 to cover the time you have already spent in custody before your trial and sentence.

ORDER

1. You are sentenced to 6 years and 6 months imprisonment which is deemed to start on 16 January 2014.
   
2. You have 14 days to appeal this sentence if you are unsatisfied with it.
   

DATED at Port Vila, this 8th day of May 2014

BY THE COURT

Vincent LUNABEK
Chief Justice