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Public Prosecutor v Pakoa [2005] VUSC 80; CRC 019 2005 (9 May 2005)

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

CRIMINAL CASE No. 19 of 2005

PUBLIC PROSECUTOR

-v-

RAOUL PAKOA

Coram: Chief Justice Vincent Lunabek

Counsel: Mr Lent Tevi for the Public Prosecutor
Mr Hillary Toa for the Defendant

SENTENCE

This is the sentence of the Defendant, Raoul Pakoa. The Defendant was charged with one count of Rape, contrary to section 91 of the Penal Code Act [CAP. 135].

The Defendant made confessional statement to the Police during his interview at the Police station and pleaded guilty as charged,

Section 90 of the Penal Code Act [CAP. 135] provides as follows:

“Any person who has sexual intercourse with another person:

(a) Without that person’s consent; or

(b) With that person’s consent if the consent is obtained:

(i) By force; or

(ii) By means of threats of intimidation or 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 upon penetration.”

This is a very serious offence charged against a person under the Penal Code Act, which carries a maximum penalty of life imprisonment.

The brief facts are as follows:

The Defendant is 26 years of age and married with a daughter aged 4 years old.

The victim is 18 years old and she is from Epi Island.

On or about the 11 of November 2004, the Defendant sent a student to call the victim at Malapoa College to come and see him. The girl came and saw the Defendant. The Defendant asked her to follow him to an interview at Malapoa Estate. She followed him.

The victim knows the house very well as she had picked up a form previously from them (the house owners) concerning an application to apply for study in Samoa, which determines her to follow the Defendant.

The Defendant and the victim found that the person who is supposed to conduct the interview was not there, so they decided to walk back home. They walked through the two main flats of Malapoa Estates and the Defendant grabbed the victim’s hand and pulled her into the nearby bushes.

The Defendant removes her clothes, and hold onto the victim as she struggled. He held her neck and pushed her down to the ground and said the following words to her “naoia bai mi fuckem yu” and then he penetrated the victim.

The Defendant committed this offence while he was on bail for two (2) other counts of rape, Contrary to section 91 of the Penal Code Act [CAP. 135]. The Court was informed that the Defendant was sentenced to a consecutive term of 8 years imprisonment for raping two (2) different women in 2004, PP v. Raoul Pakoa, Criminal Case No. 30 0f 2005. He is then brought to be dealt with in the present charge to which he pleads guilty.

It must always be understood that the maximum penalty imposed by the criminal law for the offence of rape is life imprisonment. The prosecution submitted that the guideline judgment is set down by PP v. Ali August, Criminal Case No. 14 of 2000 which was endorsed and confirmed by the Court of Appeal in PP v. Maslea Scott and Jeremiah Tula, Criminal Case No. 2 of 2002.

Moreover, the following statement made by the Court of Appeal in PP v. Gideon remains the principle authority in sexual offences:

“Men must learn that they cannot obtain sexual gratification at the expense of the weak and the vulnerable. What occurred is a tragedy for all involved men who take advantage sexually of young people forfeit the right to remain in the community.”

The following aggravating features are present in this case:-

1. The age of the victim;

2. Uses of force to commit rape;

3. Rape carefully planned;

4. While on bail for two (2) offences of rape, you commit another offence of rape.

In this case, the facts and surrounding circumstances calls for immediate custodial sentence save in very exceptional circumstances. The custodial sentence is necessary for a variety of reasons:-

• First to mark the gravity of the offence
• Second to emphasize and mark public disapproval
• Third to serve as a warning to others
• Fourth to punish the offender
• The last but not the least is to protect the woman.
  

The Defendant is contrite and very remorseful for this offence. The Defendant was cooperative with the police and entered a guilty plea at the first instance to spare this young victim of giving evidence before the Court. This will be taken into account in his sentencing.

On 4^th December 2004 you performed custom ceremony at Tebakor/Manples, especially to show how sorry you are for what happened. At the ceremony you said with deep remorse how sorry you are for the incidents to the victims and their families and to the community even the victims families accepted the custom ceremonies. Counsel on your behalf has submitted that due to customary settlement ceremonies you must receive the benefit of section 119 of the Criminal Procedure Code [CAP. 136].

The starting point for this sentencing is 5 years. This sentence is to be increased to 8 years imprisonment in reflecting the aggravating features.

The sentence of 8 years is to be considered in the light of the mitigating factors. This sentence of 8 years is to be reduced by 2 years to reflect the guilty plea. The balance be further reduced by 1 year to reflect the custom ceremony done by the Defendant under custom in accordance with section 119 of the Criminal Procedure Code [CAP. 136].
I sentence you to a term of imprisonment of 5 years on this offence. I consider but it is not warranted to suspend the term of imprisonment in this case.

As you now and still serve an imprisonment term of 8 years 2 months 22 days, your present sentence of 5 years shall be cumulative to your current terms of 8 years 2 months 22 days. This means that you shall serve the terms of imprisonment of 5 years at the completion of your term of imprisonment of 8 years 2 months and 22 days you now serve.

You have 14 days to appeal.

Dated at Port-Vila this 9^th day of May 2005

BY THE COURT

Vincent LUNABEK
Chief Justice