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Public Prosecutor v Tabigerian [2015] VUSC 181; Criminal Case 658 of 2015 (11 December 2015)

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

Criminal Case No. 658 of 2015

PUBLIC PROSECUTOR

v.

Marcel Tabigerian
Evelyn Matanlala

Coram: Justice D. V. Fatiaki

Counsels: Mr. S. Blessings for the State
Mr. J. Kausiama for the Defendants

Date of Sentence: 11 December 2015

Sentence

1. On 3 December 2015 the defendants were indicted on an Information which charged each of them with 2 counts of Sexual Intercourse Without Consent involving two different girls (names withheld) on separate occasions in March and then in August 2015 at Linen Village Central Pentecost. Both defendants pleaded guilty to the charges and after admitting the facts outlined by the prosecutor, both were convicted as charged. The first defendant Marcel Tabigerian was convicted on Counts 1 and 3 of Sexual Intercourse Without Consent and Evelyn Matanlala was convicted on Counts 2 and 4 of Sexual Intercourse Without Consent.
   
2. The defendants are a married couple. The first victim (MR) was a single 19 year old girl from Wadumabura Village, Central Pentecost who describes the first defendant as: "... hemi cousin tati blong stret tati blong mi mo mi mamy long woman blong hem".
   
3. The second victim (DM) was 20 years old at the time of the offence. She hails from Lebwribwri Village in Central Pentecost and describes her relationship with the First Defendant as: "... hem stret kasin brata blong dady blong mi...". Additionally DM's mother describes the Second Defendant as: "hemi stret kasin sister blong mi, wan dadi i bornem me mo wan dadi i bornem Evelyn". Clearly both victims are very closely related to either one or to both defendants. In short, they were nieces of the defendants.
   
4. The first incident involving the complainant MR occurred on the night of 26 March 2015. MR had gone for a swim and was approached at the beach by the First Defendant who invited her to spend the night at his house. She agreed and thought nothing of it as they were closely related.
   
5. During the night MR awakened to the First Defendant touching and calling to her. The First Defendant invited her to go to his bedroom and have sexual intercourse ("blong tufala i playplay"). MR refused and told the First Defendant: "yu yu wan tati blong mi" (you are my uncle) but the First Defendant replied: "hemia i ol raet nomo" (It's alright). Undeterred the First Defendant held MR's hand tightly and pulled her towards his bedroom where MR saw the Second Defendant lying fully naked on the bed waiting for them.
   
6. The Second Defendant then told MR to undress and join them on the bed MR refused at first but after the First Defendant spoke sternly to her and the Second Defendant persuaded her by saying: "Yu no mas sem samting ia i hapen long evri man ya" ("Don't be ashamed this happens to everyone"), MR undressed and got into the bed. Then a torch was lit and the First Defendant told MR to watch how they (the defendants) performed sexual intercourse.
   
7. The First Defendant began by sucking the Second Defendant's vagina and then he had full penile intercourse with her. He also sucked and caressed the Second Defendant's breasts during the intercourse. After sometime the First Defendant withdrew from the Second Defendant who then proceeded to suck the First Defendant's penis. The First Defendant then got off the bed and told MR it was the Second Defendant's turn to have sex with her. When MR refused the Second Defendant initiated and eventually performed complete oral intercourse by sucking MR's vagina. Then after much pestering and insistence MR reluctantly performed oral intercourse on the Second Defendant.
   
8. After MR finished the First Defendant said it was his turn to do to MR what he had done to the Second Defendant who also agreed to watch them. The First Defendant performed oral intercourse on MR and then had full penile intercourse with her. After he withdrew from MR the Second Defendant sucked the First Defendant's penis until it became erect and the First Defendant again had full penile intercourse with MR for a second time before MR was released to return to her bedroom.
   
9. After this incident the defendants warned MR not to tell anyone about it. They also told her that what they did together with her: "be fasin ya i gud nomo evri man oli stap fuck" (what they did is the normal and common behaviour of sexually active people).
   
10. The second incident involving DM occurred on a night in August 2015. On this occasion the First Defendant had requested DM's parents for her to come and stay with them. Initially DM's parents refused but after the First Defendant's persist importuning, they agreed. The first day DM spent with the defendants passed without incidence but DM's experience on the second night was quite different.
    
11. On the second night DM was awakened at about midnight and told to prepare the defendants' dinner of fried fish. She did that and returned to sleep. After a while the First Defendant entered her bedroom, sat on her bed, held her tightly, and asked to have sexual intercourse with her. She refused saying: "Mi no wantem from yu, yu stret papa blong mi nomo" (I don't want to, you are my real daddy). To this refusal the First Defendant merely replied: "Hemia laef ia" (That's life). The First Defendant then left the room.
    
12. Soon after the First Defendant left, the Second Defendant entered DM's bedroom and sat on the bed. The Second Defendant was fully naked at the time and she told DM to give herself to the First Defendant and not to be ashamed of them. When DM continued to refuse the Second Defendant forcefully undressed DM and forced her to suck the Second Defendant's breasts by holding DM's head to her breasts and at the same time forcing DM's hand to penetrate her (the Second Defendant's) vagina.
    
13. The Second Defendant then performed oral intercourse on DM and digitally penetrated DM's vagina. The Second Defendant then forced DM to perform oral intercourse on her by holding DM's head tightly between her legs. While this was going on the First Defendant entered the room and had full penile intercourse with the Second Defendant in the presence of DM. After finishing with the Second Defendant the First Defendant had full penile intercourse with DM. DM experienced severe pain and cried out as she was still then a virgin. Undeterred the First Defendant continued until he ejaculated and then he lay between the Second Defendant and DM and continued to suck DM's breasts while digitally penetrating her. After a while both defendants left DM's bedroom.
    
14. The details of what occurred between the defendants and both complainants is largely extracted from their police statements and tells of their ordeal at the hands of both defendants. If I may say so there was nothing "normal" or "common" about the sexual behaviour of the defendants towards the complainants or towards each other and the nature, circumstances and uninhibited exhibitionism of what transpired is not dissimilar to an orgy or "groupe sex" to adopt the First Defendant's own description in his police caution statement.
    
15. Although no victim impact statements were recorded from the complainants as they should have been, both describe in their respective police statements, the helplessness, fear, disgust, anguish, shame and embarrassment they felt during the incident and for sometime afterwards until in late August/September 2015 when both plucked up the courage to relate their ordeals to their parents and the matter was reported to the police in early October 2015. Thankfully MR is now happily married and has resettled in her husband's village of Levatgamwele.
    
16. If I may say so besides the complainants who are the primary victims in the case, in a very real sense the defendants' innocent young family of 7 children aged between 18 years and 9 months will be made to suffer too by the loss of the vital support and comfort of both their parents not because of anything they did, but purely because of the defendants' selfish and despicable actions which has undoubtedly brought much shame and anxiety to their children and family members who will now have to shoulder the added responsibility of the children's up-bringing and welfare.
    
17. Bet that as it may on 19 September 2015 a customary reconciliation ceremony ("klinimapfes") was held at Lakavatkaimel nakamal between the defendants and the complainant MR's family and chiefs where the First Defendant was fined a total of eleven (11) pigs of varying sizes with a total estimated value of VT80,000 and the Second Defendant was fined one (1) large pig worth VT30,000. Unfortunately MR did not receive any pig as the person most directly affected by the defendants' actions.
    
18. A similar ceremony was held on 10 October 2015 at Lebwibwi nakamal between the defendants and DM's family and chiefs where the First Defendant was fined ten (10) pigs of which two large pigs were given to the complainant DM and her father and the remaining 8 pigs were distributed to the chiefs through whose territory the defendants had to traverse regularly to attend cultural functions. The total estimated value of the pigs was also VT80,000. DM's father confirms receiving one large pig but he tellingly informed the probation officer who prepared the First Defendant's pre-sentence report: "... that does not make the offending disappear for his daughter (DM)". DM's father also told the probation officer that he also received an additional eight (8) red custom mats and VT10,000 cash as part of the custom reconciliation ceremony.
    
19. Letters from the chiefs who attended, confirms the performance of the custom reconciliation ceremonies and the Kastom fines of pigs ordered and paid by the defendants. The chiefs also confirm that peace and harmony has been re-established in their village communities and between the defendants and the complainants' families. The significance of these customary fines is further explained in a joint letter dated 20 October 2015 signed by five (5) which states inter alia: "Long custom blong Pentecost taem yu faen long ten pig it minim se yu kilim tet wan man we hemi minim se ten pig hemi LAS JAJMEN long custom blong Pentecost" (being a reference to the highest or maximum form of customary punishment or fine that can be imposed).
    
20. I accept that in assessing the sentence to be imposed on the defendants, this Court is required in terms of Section 39 of the Penal Code to take into account any compensation or reparation made by the defendants under custom (see also: the similar provisions of Section 119 of the Criminal Procedure Code). I also accept that Article 95 (3) of the Constitution declares that "Customary law shall continue to have effect as part of the law of the Republic of Vanuatu". But as was said by the Court of Appeal in Noel v. PP [1996] VUCA 5 in disavowing the possibility that a serious charge of Attempted Rape can be assessed in monetary terms so that those with financial means or access to it, can avoid imprisonment:
    

"There must be a carefully balanced recognition of custom in order to ensure continued control and effectiveness of the Council of Chiefs and so maintain the influence of the individual chiefs themselves. At the same time the laws of Vanuatu must be upheld to ensure appropriate penalties are imposed on any offenders who breach those laws and so warn the public in general of the level of punishment that will follow like transgressions".

21. Under police caution the First Defendant frankly admitted having sexual intercourse with both complainants in the presence and with the agreement of the Second Defendant and further, he is recorded as having said: "Mi wantem talem se wanem samting (toktok) we tufala gel i talem ol i tru evri wan" (whatever the complainants said is all true). However to the probation officer preparing his pre-sentence report, the First Defendant is reported as blaming MR's behaviour towards him as being the cause of his offending against her. He also stated that another contributing factor was his sexual desire and addiction in viewing pornographic clips.
    
22. The Second Defendant also admits her role in the sexual assaults on each of the complainants both personally and by the First Defendant in her police caution statement with one rider. She claims that as she is uneducated she was taught by the First Defendant how to perform such sexual acts ("Dadi blong mifala (Marcel) hemi teachem mi how blong makem olsem") and she also claims she was forced to do what she did to the complainants by the First Defendant.
    
23. I reject any suggestion of direct co-ercion by the First Defendant. In both incidents the Second Defendant willingly played an initiating and/or persuading role even in the absence of the First Defendant during the second incident involving DM. Furthermore there are her answers to questions 16 to 20 of her caution interview which are telling where in response to the First Defendant's fervent request to have sexual intercourse with DM, the Second Defendant replied: "Mi bin talem yes, from mi gat bell o pregnant 9 months"(I told him yes because I was 9 months pregnant) and in answer 19, the Second Defendant says: "Mi bin go tekem(DM)ikam" (I went and called DM to come)and finally, at answer 20 she is recorded as having told DM that the First Defendant wanted to have sexual intercourse with DM on their marital bed ("... mi talem hem tati Marcel i wandem fuckem yu long bed blong mitufala"). If I may say so these are not the answers of someone being forced to cooperate against their will.
    
24. This blame-shifting to minimise her part was repeated by the Second Defendant to the probation officer who prepared her pre-sentence report to whom she is reported to have said she was pressured by her husband. ("Hemia hemi festaem we mi mekem kaen samting fasin olsem, ating man blong mi lanem ol samting ia long internet"). However as in her police caution statement, the Second Defendant also expressed her sorrow and remorse to the probation officer for her actions against the complainants ("Mi sori long tufala from mi spoilem tufala").
    
25. The offending in the present case is aggravated by the following features:
    
    • (1) The complainants are closely related to both defendants;
      
    • (2) There has been a shocking breach of trust and abuse of authority on the defendants' part;
      
    • (3) There was planning and pre-meditation in the commission of the offences;
      
    • (4) The defendants are a sexually mature married couple aged 41 years and 36 years whereas the complainants were a 19 year old virgin and a young 20 year old niece;
      
    • (5) The complainants were subjected to prolonged and repeated sexual indignities over and above forced penile intercourse;
      
26. In PP v. Scott [2002] VUCA 29 the Court of Appeal affirmed the decision of the Chief Justice in PP v. Ali August which laid down the following sentencing guidelines:
    

"The offence of rape is always a most serious crime. Other than in wholly exceptional circumstance, rape calls for an immediate custodial sentence. This was certainly so in the present case. A custodial sentence is necessary for a variety of reasons. First of all to mark the gravity of the offence.Secondly to emphasize public disapproval. Thirdly to serve as a warning to others. Fourthly to punish the offender, and last but by no means least, to protect women. The length of the sentence will depend on the circumstances. That is a trite observation, but these in cases of rape vary widely from case to case.

For rape committed by an adult without an aggravating or mitigating feature, a figure of five years should be taken as the starting point in a contested case. Where a rape is committed by two or more men acting together, or by a man who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive the starting point should be eight years.

At the top of the scale comes the defendant who has committed the offence of rape upon a number of different women or girls. He represents a more than ordinary danger and a sentence of fifteen years or more may be appropriate."

Furthermore:

"The offence of rape should in any event be treated as aggravated by any of the following factors:

(1) Violence is used over and above the force necessary to commit rape;

(2) A weapon is used to frighten or wound the victim;

(3) The rape is repeated;

(4) The rape has been carefully planned;

(5) The defendant has previous convictions for rape or other serious offences of a violent or sexual kind;

(6) The victim is subject to further sexual indignities or perversions;

(7) The victim is either very old or young;

(8) The effect upon the victim, whether physical or mental, is of special seriousness.

Where any one or more of these aggravating features are present, the sentence should be substantially higher than the figure suggested as the starting point.

If the defendant pleads guilty, the sentence should be reduced by 1/3 depending on the circumstances, including the likelihood of a finding of not guilty had the matter been contested.

27. Defence counsel has also very properly and fairly drawn the court's attention to the case of PP v. Jacob Tovorvor and Marie Tovorvor [2013] VUSC31. Although that case is much more serious than the present case, in that it involved 6 young victims between the ages of 11 and 14, there are numerous similarities between the cases. For instance the victims were all related to the defendants and staying with them when the offences occurred; the defendants were married with 7 children and both actively participated in the sexual abuse of each victim including making them watch them having sexual intercourse on the marital bed as well as performing oral intercourse with some of the victims.
    
28. In that case the Supreme Court adopted an end point of 20 years imprisonment for the totality of the 6 offences and reduced it to 13 years for the husband who had pleaded guilty. For the wife, the court adopted a lesser end point of 8 years because of pressure exerted on her by her husband in the commission of the offences. The wife was sentenced to an end sentence of 5 years for the assistance she provided to her husband and for her failure to call for help or prevent the victims staying at their home.
    
29. The similarity in the cases is significant and I propose to follow a similar sentencing approach in this case bearing in mind the totality of the criminality of each defendants' offending rather than dealing with each complainant and each count separately.
    

Marcel Tabigerian

30. In light of the common aggravating factors and the guidance provided in the Scott case (ibid), I consider the totality of your criminal behaviour warrants an end sentence of 12 years imprisonment which is reduced by five (5) years for your early guilty pleas and the substantial custom reconciliation ceremony you performed to each complainant, her chiefs, and family members. This gives you an end sentence of [12 – 5] = 7 years imprisonment which I impose on each of counts 1 and 3 to be served concurrently.
    

Evelyn Matanlala

31. In light of your slightly lesser role in the commission of the offences and acknowledging that you may well have been acting under some pressure from your husband as reflected in the pre-sentence report of the probation officer who assessed your "lack of insight and the pressures from the First Defendant as the major contributing factors to your offending", I consider that a sentence of 8 years properly reflects the total criminality of your actions.
    
32. In accordance with the guidance in Scott's case you are also eligible for a third reduction for your early guilty pleas and to a lesser degree for your contribution in the customary reconciliation ceremony. For those mitigating factors I deduct 4 years making an end sentence of [8 – 4] = 4 years imprisonment imposed in respect of counts 2 and 4 to be served concurrently.
    
33. If either one or both of you disagree with this sentence imposed you have 14 days within which to appeal it to the Court of Appeal.
    

DATED at Luganville, Santo, this11thday of December, 2015.

BY THE COURT

D. V. FATIAKI
Judge.