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Public Prosecutor v Robin [2005] VUSC 69; Criminal Case No 010 of 2004 (8 July 2005)

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


Criminal Case No. 10 of 2004


PUBLIC PROSECUTOR


-v-


KASSO ROBIN
TOM IAU


SENTENCE


Introduction


  1. The incident of rape occurred about midnight 5th of March and early morning 6th March 2004.
  2. The Police picked up the defendants immediately following the incident.
  3. On 30 March 2004 the Magistrates Court in Port Vila made a finding that a prima facie case was disclosed and committed the defendants to the Supreme Court for trial.
  4. On 6th April 2004 both defendants were remanded in custody to await trial.
  5. On 4th of May 2004 defendant Kaso Robin only took his plea and pleaded guilty to the charge of rape. He was released on bail to await trial. The other defendant Tom Iau was also released on bail. One of the bail conditions stated that the defendants must not leave the island of Efate.
  6. Various dates were set down for plea and sentencing but for different reasons, did not eventuate.
  7. On 16 March 2005 sentencing was again postponed to 6 April 2005 as defendant Tom Iau had absconded about 2 months prior to that date. Bail conditions for Kaso Robin were extended. A warrant of arrest for Tom Iau was issued and he was arrested and remanded in custody.
  8. On 8th April 2005 Mr. Tom Iau took his plea and pleaded guilty to the charge. Sentencing was set down for 16 June 2005.
  9. Hearing on sentence took place on 16 June 2005.

Facts


  1. The defendants in this matter are Kaso Robin and Tom Iau from Tanna. Kaso Robin is 29 years old and Tom Iau is 24 years old.
  2. The defendants are charged with one count of rape contrary to section 91 of the Penal Code Act [CAP. 135]. The complainant (whom I will refer to as X) was 21 years old at that time of rape.
  3. On Friday the 5th of March sometime between 11.30 p.m. and 12.30 a.m., X and three of her friends left Club Vanuatu and were walking towards the Office Pub, currently known as Flaming Bull. When they arrived outside Smugglers Night Club, a man standing outside the Club approached them. The man walked up to Naomi (one of X’s friends) and touched her breasts. Naomi told the man to stop and asked the man whether he had known her before. Another man described as tall and black wearing a red t-shirt and white trousers (Kaso Robin) also approached Naomi. He punched her and she fell on the road. She got up and asked Robin why he assaulted her. Robin did not respond but assaulted her again.
  4. X walked slowly to where the defendants were assaulting Naomi and asked them to stop. While she was talking to the defendants, her friends ran away. The defendants run after her friends. X slowly started to walk away in the direction her friends had taken. She wanted to run but feared that the defendants will catch up with them and assault them. The defendants did in fact returned and Robin grabbed hold of her left hand and pulled her towards him. X refused and told him to let go off her hand and that she told them that she respected them. But Robin did not release her.
  5. Robin pulled her across the road towards the VFF (Vanuatu Football Federation) House. Tom Iau followed them. The street lights had gone off by that time. Robin continued to pull X along the road towards the VNPF building. All her attempts at freeing herself failed. Fearing for her safety she changed tact and talked to the defendants nicely for them to let her go. This did not work either.
  6. Robin continued to pull X past the VNPF building and across the road and entered an empty space in front of Radio Vanuatu. X continued to struggle to free her hands to no avail. Robin pulled her into a small bush beside Radio Vanuatu boundary. Tom Iau who was behind X pushed her hard on the back and she fell into the bush.
  7. Tom Iau then stood over X, held her shoulders and pushed her to the ground. She struggled to get up but she was firmly held down. Tom Iau continued to hold X’s shoulders and pushed her to the ground while Robin unzipped her jean trousers and removed it with her panty and placed them by her left leg.
  8. Robin removed his shorts halfway towards his knees, and slept on top of X, but could not have sex with her as she cried and kept on struggling. Tom Iau then kneeled close to X and held her left shoulder and left thigh and pushed them to the ground while Robin had sexual intercourse with X.
  9. While Robin was having sexual intercourse with X, Tom Iau held her mouth and told her to be quiet. He also told Robin to hurry up. X felt that her vagina was wet and then Robin came out of her.
  10. When Robin finished with X Tom Iau then got on top of X. She continued to cry but Tom Iau told her to close her mouth and to be quiet and he had sexual intercourse with her. Tom Iau tried to kiss her but she turned her face away so he bit her right cheeks instead. Tom Iau also scratched her face close to her nose and on her cheeks while trying to hold X’s mouth because the she kept struggling to free herself from him.
  11. When Tom Iau finished having sex with X Robin then had sex with her the second time. X felt hopeless and kept on crying.
  12. The police picked her up with the two defendants immediately after the incident and took them to the police station.

Prosecutions submissions


  1. Kalmet for the Public Prosecutor submitted that the leading authority in relation to the appropriate sentence to be imposed when a person is to be sentenced for committing the offence of rape contrary to section 91 of the Penal Code Act [CAP. 135] is the case of PP –v- Scott and Tula, Court of Appeal Criminal Appeal Case No. 2 of 2002, [2002] VUCA 20 (Scott & Tula).
  2. Kalmet further submitted that this case is not one which falls into the category of “most exceptional of cases” that would warrant the suspension of a custodial sentence. Counsel continued that the circumstances of this case is such that a custodial sentence is the appropriate penalty to be imposed. Counsel cites the case of PP –v- Ali August, Criminal Case No. 14 of 2000 [2000] VUSC 73 as authority that –
  3. The Court of Appeal confirmed the Supreme Courts decision that:-

“The offence of rape is always a serious crime. Other than in wholly exceptional circumstances, rape call 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.”


  1. Kalmet goes on to say that the offending in this case falls into the higher scale. The defendants collectively ensured, by their actions, that they had sexual intercourse with the victim. Whether she wanted to or not. They held her tightly, ensured that she did not get away, and walked her to the isolated spot where they then took turns in raping her. The starting point should be 8 years in line with the guideline of Scott and Tula.
  2. Kalmet went on to submit that the following aggravating features are present in the circumstances of this case:-

Customary Settlement


  1. Mr. Kalmet submitted that the customary settlement performed by the chief for and on behalf of the defendants and accepted by the victim and her families should not affect the nature of punishment which in this case warrants an immediate custodial sentence. The case of Public Prosecutor –v- Wayane & Others, Criminal Case No. 08 of 2000, [2000] VUSC 57 was cited as authority for the proposition. In that case the defendants had pleaded guilty to charges of rape, and had performed custom settlements also. In the decision His Lordship said:

“A defendant commits an offence must pay the price for the penalty prescribed by such offence and customary settlement cannot exchange such punishment but can only use to ease the ill feelings between the parties and their relatives and ... it benefits sentence.”


  1. In Kevin Gideon, Criminal Appeal Case No. 03 of 2003, [2002] VUCA 7 the Court of Appeal held that any compensation or reparation made in line with custom pursuant to section 119 of the Criminal Procedure Code Act [CAP. 136] is relevant only “to an assessment of the quantum of the sentence and not the nature of sentence”. The Court of Appeal stated: “Section 119 is relevant to an assessment of the quantum of the sentence and not the nature of the sentence. It can influence the length of a sentence of imprisonment or the amount of a fine, but not its fundamental nature. In other words the section cannot alter what is otherwise an appropriate immediate custodial sentence to a non-custodial sentence ...”.

Guilty Plea


  1. Mr. Kalmet acknowledges the position regarding guilty pleas and informs the Court that, in the circumstances of this case, both defendants are entitled to a reduction of the penalty to be imposed by 1/3.
  2. Sentence imposed by the Court should be reduced taking into account the guilty pleas and other mitigating factors.

Defence Submissions


  1. Mr. Kausiama, on behalf of the defendants, told the Court of mitigating features in the circumstances of this case. He went on to ask the Court to take these into account when determining the appropriate sentence or sentences to be imposed on the defendants.
  2. Mr. Kausiama informed the Court that both defendants are first time offenders.
  3. They pleaded guilty to the charge and at the first available opportunity given to them. The guilty plea relieves the victim from having the trauma of rape committed on her by having to recite and recall details before the Court. That the guilty pleas by the defendants are also an indication of remorse and contrition.
  4. The defendants apologise to the Court and have apologized to the victim and her family for what had happened.
  5. The defendants, through their chief, have performed a reconciliation ceremony in accordance with their custom to the victim and her family on 11th March, 2004 at Tagabe, in Port Vila. The following were given to the victim:-
  6. Mr. Kausiama continued strongly that the Court ought to consider a reduction of the sentence imposed on each defendant by 1/3 on account of the reconciliation ceremony. He submits that such reconciliation in accordance with custom involves not only the parties concerned but their families and community members from both parties. It is not easy to put monetary value on the items exchanged or the ceremony itself. At the heart of such a ceremony is the community concern for peace, order and harmony to be maintained. That is why such ceremonies inevitably always involve members of the community from both parties. Why is custom ceremony ensuring peace and order in the community is accepted by the communities but not the Court. At the heart of such ceremonies also is respect.
  7. Mr. Kausiama further submitted that Robin repeated the act of rape at the date in question. Not Tom Iau. One must be sentenced on the evidence accordingly. The aggravation attaching to the two defendants differs accordingly in that Robin raped X twice and Tom Iau only once.
  8. Mr. Kausiama, on behalf of the defendants, acknowledged that the offence of rape is a serious offence. That he has advised the defendants that the circumstances of their case warrants an immediate custodial sentence.
  9. That the case of Scott & Tula sets the starting point for two defendants committing such an offence at 8 years. Mr. Kausiama concludes that the Court impose a sentence that is appropriate or fair taking into account the circumstances of the case and the mitigating features.

The Law


  1. The offence of rape and the punishment of rape is provided for under sections 90 and 91 of the Penal Code Act [CAP. 135]. I set them out fully below:-

“RAPE DEFINED


90. Any person who had sexual intercourse with another person:-


(a) without that person’s consent; or


(b) with that person’s consent if the consent if obtained:-


(i) by force; or


(ii) by means of threats of intimidation of any kind; or


(iii) by fear of bodily harm; or

(iv) by means of false representation as to the nature of the act; or

(v) in the case of a married person, by impersonating that person’s husband or wife;

commits the offence of rape. The offence is complete on penetration.


PUNISHMENT OF RAPE


  1. No person shall commit rape. Penalty: imprisonment for life.”

Discussions


  1. Rape is one of the most serious offences on the statue books and attracts the maximum term of life imprisonment. It will be in rare cases that an offender will avoid custodial sentence.
  2. X on the date of rape was 21 years old. A young woman in her prime. She was out with her friends to enjoy themselves. You assaulted one of her friends Naomi repeatedly. X came to her friend’s rescue. She told you not to assault her friend. That they were not out to cause problems for you.
  3. While she was holding your attention her friends run off. She was too scared to run fearing that if she did that could provoke you into assaulting her. She slowly walked away. However, you spotted her and Kaso Robin grabbed her by her left hand and pulled her to follow you.
  4. By this time the street lights had already gone out. Despite her pleas to let her go you pulled her up past the Vanuatu Commission (Vanuatu Financial Services Commission Building), past the VFF House, round the back of the VNPF Building and on to the bush near the Radio Vanuatu complex, approximately 200 metres from near the Smugglers Night Club where Robin had grabbed her.
  5. On the way to the bush at the edge of the vacant property near the Radio Vanuatu complex, X had been pleading with you to let her go to no avail. When she tried to remove her hand Kaso Robin held on firmly and tighten his hold to ensure she could not free her hand to try and get away.
  6. As her struggling only caused you to tighten your hold on her she changed her tactic and talked to you nicely and pleaded with you to let her go to no avail. She was fearing for her life.
  7. On reaching the bush, Tom Iau pushed X firmly and she fell down. Iau then proceeded to hold her by her shoulders and pushed her down onto the ground.
  8. X at that time was struggling and trying to sit up.
  9. While Iau was pushing her down by her shoulders, Robin un-zipped X’s long blue jean and removed her other clothing also. He got on top of her but could not have sex with her as X was struggling.
  10. Iau then held X’s left shoulder and left thigh down firmly and enabled Kaso to rape X.
  11. While Kaso was raping X. Iau told X to keep quiet and also told Kaso to hurry up.
  12. When Kaso finished. Iau then raped X. X was crying but Iau told her “you sarem maot blong you mo you stap quiet”. Iau in trying to kiss X bit her on the right cheek as she did not keep her head still. He also scratched her face near the nose and on her cheeks.
  13. When Iau finished with X Kaso had another round of raping X.
  14. There are clearly aggravating features in the circumstances of this case.
  15. For Kaso Robin, they are:-
  16. For Tom Iau, they are:-
  17. For both of you, the aggravating features are:-

Some planning or common understanding was reached. When Kaso grabbed X and walked away with her Iau went along. Nothing at all was done by Iau to have or in an attempt to have X released, because what Kaso was doing was not right. On arriving at the bush it was you, Iau, who pushed X hard in the back causing her to fall forward into the bush. At the place where you met the girls you both went after X’s friends who were fleeing you. It was a fair distance from where Kaso grabed X and you walked her to the bush where you raped her.


  1. Rape is a very serious crime in this country. The maximum penalty is life imprisonment.
  2. The mitigating features are as follows:-
  3. The circumstances of your case is one which in my view falls within the higher scale as established in the case of PP –v- Scott & Tula. You have collectively ensured that X could not get away once you had her. You walked her some 200 meters to the spot where you raped her. You assisted each other in ensuring that you had sex with her not withstanding that she did not want to. You, Kaso, went with X first and then Iau, and then again you, Kaso. It was at night and at the time when the street lights had already been turned off. The spot you chose to carry out your unlawful activities was an isolated spot.
  4. A custodial sentence is the appropriate penalty in the circumstances of your case. The starting point for both of you in my view has to be 8 years inline with the guideline Judgment of PP –v- Scott & Tula.
  5. This was a young woman on her own that night and frightened for her safety and life.
  6. You took her by force. All you were concerned with was your enjoyment at her expense. You thought only of your self and your sexual gratification. You did not respect her as a human being but saw her as being available to satisfy your sexual pleasures.
  7. This is a sad day indeed. In pursuing your pleasures on a defenceless woman that night you have committed a very serious crime in this country. Now you must pay the price, and it is a high one.
  8. Parliament laid down the penalty for rape to be life imprisonment. It is a recognition that this class of offences is a serious one. The Court of Appeal in Scott & Tula when upholding the Supreme Court decision in PP –v- Ali August recognized that the “offence of rape is always a serious crime. (And that) Other than in wholly exceptional circumstances, rape calls for an immediate custodial sentence ...”.
  9. The Court of Appeal went on to confirm the reasons for custodial sentence as follows:-

“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.”


  1. In the circumstances of this case, I fully concur with their Lordships. Men must learn to respect the rights of women. If a woman says no to sexual advances then a man should respect her and her right to make that decision.

Sentence


  1. The starting point of 8 years must in my view be increased substantially to reflect the aggravating features.
  2. For Tom Iau the starting point is increased to 12 years.
  3. A third is taken off for the guilty plea.
  4. Reconciliation in line with the custom of the parties involved is an important thing in the communities as such ceremonies form the basis of ensuring that peace and order is maintained in the communities and further is a start in the healing process between those affected and their families. The importance and the value placed on such ceremonies and what is exchanged in such ceremonies cannot be overlooked. The Court must take it into account to determine the appropriate length of sentence of imprisonment or the amount of a fine. That is all. It cannot alter what is otherwise an appropriate custodial sentence to a non-custodial one.
  5. One third is taken off for the reconciliation in accordance with custom and the other mitigating features.
  6. 4 months 3 weeks 1 day is reduced for the time already spent in custody.
  7. For Kaso Robin the starting point is increased to 14 years. You committed the offence of rape on the victim repeatedly on that occasion. Your culpability is higher. Jointly, you ensured that you achieved your purpose that night. However, you went further by committing the act of rape on this defenceless young woman a second time. The fact that you may have been under the influence of alcohol is no defence.
  8. The offending in your case in the totality of what happened that night is a much more serious matter.
  9. X was bruised, sore, frightened and scared and at your mercy at that point in time, when you decided to rape her a second time.
  10. One third is reduced for the guilty plea.
  11. One third is further taken off for the reconciliation in accordance with custom plus the other mitigating features.
  12. A further 2 months is taken off for the time you have already spent in custody.
  13. Tom Iau, I sentence you to a term of imprisonment of 4 years 11 months and 6 days.
  14. Kaso Robin, I sentence you to a term of imprisonment of 6 years and 20 days.
  15. You have a right to appeal this decision within 14 days.

DATED at Port Vila, this 8th day of July 2005.


H. BULU
Judge.

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