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Public Prosecutor v Benjamin [2005] VUSC 110; CRC 051 2005 (15 September 2005)

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

Criminal Case No. 51 of 2005

PUBLIC PROSECUTOR

–v-

ABIUT BENJAMIN

Coram: Justice Treston

Mr. Kalmet for Public Prosecutor
Mr. Bartels for Accused

Date of Plea: 07 September 2005
Date of Sentence: 15 September 2005

SENTENCE

Mr. Abiut Benjamin you appear for sentence today on a charge of attempted rape. As for a rape itself, the potential sentence even for an attempt is life imprisonment, so the Law and Court regard this matter, of course, very seriously indeed particularly because of the detail that I will refer to you shortly.

The victim was aged 10 years and is from Toak village, Southeast Ambrym. You are her uncle being the brother of her father and you were responsible for caring for her while she attended school in Ambrym when her parents were living in Vila. Sometime in the month of June of this year, your wife left your home to go to the market in another village. You told the victim that you and she were to go to dig for yams in your garden even though she wanted to go and follow a friend of hers. You insisted that she went with you and as a result you both went to the garden and dug yams. While you both were doing that, you approached her and told her to remove her panties but she refused. You then threatened her to the effect that, if she didn't remove her panties, you would hang her neck. She became afraid and started crying and you removed her panties and her shorts and took her to one side of the garden. While she was still crying, you endeavoured to insert your penis into her anus causing her pain. Penetration was not effected. You told her not to report the matter to anyone. Subsequently, the offence became known to your wife when she returned from the market and there were other incidents concerning the threats. Subsequently, the police became aware of the matter and you were given a cautioned interview. You admitted the incident and said that you only tried to do it once.

The Prosecutor submitted to me the general principles concerning sentences for rapes and attempted rapes. He submitted to me that the aggravating features included your use of force and threats to induce the attempted sexual intercourse, that there was careful planning, and the relatively very young age of the victim. The effects upon her were shown in the victim's impact statement. That indicates that she is not afraid and that she sleeps well. She is endeavouring to forget what happened but when she thinks about what did happened she does become scared. She prefers to go to school here in Vila, which is away from the island school near to where the incident occurred. Here in Vila, she feels safer and no longer cries. The victim's mother says that the victim has changed and does not pay attention or listen as well as she used to. In the Court's experience that is a common result of sexual abuse like this. There was a reconciliation meeting, but the victim did not want to come out because she was scared. Her mother is endeavouring to address the difficulties that her daughter is facing through bible reading, prayer and singing of choir songs. The Prosecutor submitted that the starting point in accordance with the Ali August case should be 8 years imprisonment plus the aggravating matters to which I have referred, but giving you credit for other factors such as your plea of guilty and your attempt to compensate by custom.

On your behalf, the Public Solicitor submitted that you are about 47 years of age and have 6 children now aged between the years 18 and 30. You were unemployed at the time of the offence although clearly involved in gardening. You have no prior criminal history and on your release want to make good the harm that you have caused to the community. You are remorseful and contrite and sorry for the wrong you have done to the young victim. Full compensation by custom has been unable to be properly effected because of an unavailability of pigs required in such a settlement but your family will carry out that compensation by custom as soon as possible and even as soon as this weekend. You admitted that you developed what you called 'rubbish thoughts' towards the young victim. It is also said on your behalf that you will serve any sentence at a distance from some members of your large family who reside in Ambrym, although your six children are now living in Vila.

In sentencing the Court must hold you accountable for the harm done not only to the victim but also to the community at large which harm you have acknowledged. I must denounce your conduct and deter you and others from committing what seems to be an ever-increasing crime in this community. I must not only protect the victim but also the community in general from this sort of unacceptable abuse. The Chief Justice in the Ali August case said this:-

"The offence of rape is always a serious crime. Other than in wholly exceptional circumstance, rape calls for an immediate custodial sentence. 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 by no means least, to protect women"

And the Chief Justice said that: -

"Where a rape is committed by a person who is in a position of responsibility towards the victim, the starting point should be 8 years."

I must balance the aggravating and mitigating features. First there was a threat of violence when you indicated to the victim that if she did not remove her pants, you would hang her neck. Second, there was an abuse of trust where you were in loco parentis for the victim while her parents were in Vila. Next there was the vulnerability of the victim because of her young age of 10 years. Next were the elements of premeditation and planning because you admitted candidly and fairly that you had had 'rubbish thoughts' towards her. I return to the age subject. The victim was only 10 years of age and there was a gross disparity between your age of 47 and her age of 10.

By way of mitigation, of course, there is your plea of guilty. There is your expression of remorse and contrition. There is the fact that on your release, you intend to return to your community and do what you can to make up for your offending. Next, there is the fact of your clean record criminal in that you are a first offender. With the greatest respect I do not consider that the fact that you need to serve your sentence here in Port Vila rather than on Ambrym is a particularly mitigating factor but in that regard I take into account what counsel had said about that.

There is little to differentiate for a young victim like this between a crime of rape or one of attempted rape. The law in this Republic does not differentiate between the two as to maximum penalty and it is only perhaps fortunate of that it was not an actual rape rather than an attempted rape case because it was clearly your intention to rape the victim. I agree with the Chief Justice's starting point of 8 years imprisonment for this matter in your circumstances and in a recent similar case Public Prosecutor v Vulu Criminal Case No. 20 of 2004, a decision of Mr. Justice Bulu, that starting point was used. I agree that there are aggravating features which properly increase the starting point in your case by 2 years to 10 years imprisonment, from that I immediately deduct one-third in accordance with the guidelines for your early plea of guilty. In addition I take off another 1 year for the other mitigating factors that I have referred to, together with account under section 119 of the Criminal Procedure Code [CAP. 136] for compensation by custom. You endeavoured to carry out a reconciliation which the victim understandably would not participate in no doubt because of the ongoing psychological effects upon her and of course that is just an example of another aggravating feature with ongoing psychological effects. Section 119 allows me to take a compensation by custom ceremony into account in anticipation of that taking place and I rely upon your stated good intentions and the good will of your family to make that happen and I am sure that it will because you have demonstrated your goodwill already in the endeavoured reconciliation meeting.

Having made those remarks about starting point and allowances, I am left with a sentence of 5 years and 8 months. I deduct a further one week from that for the time spent in custody leaving a finite sentence today which I impose upon you of 5 years, seven months and 3 weeks imprisonment. That is a little less than the sentence in the Vulu case but there were other factors in that case which means that your case and that one are not exactly the same, for example there was no compensation by custom, and he had previously offended.

You have the right to appeal against this decision within 14 days.

Dated AT PORT VILA, this 15^th day of September 2004

BY THE COURT

P. I. TRESTON
Judge