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Public Prosecutor v Beau [2007] VUSC 14; Criminal Case 26 of 2007 (13 April 2007)

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

CRIMINAL CASE No.26 of 2007

PUBLIC PROSECUTOR

-v-

SAM BEAU

Mr Lent Tevi for the Public Prosecutor
Messrs Peter Bartels and Henzler Vira for the Defendant

SENTENCE

This is the sentence of the Defendant, Sam Beau. Sam Beau, you are charged with the offence of Rape, contrary to Section 91 of the Penal Code Act [CAP.135].

The offence of rape is always a most crime. The law recognizes the most seriousness of the crime of rape by imposing a life imprisonment sentence as the maximum penalty for the crime of rape under Section 91 of the Penal Code Act [CAP.135].

What is rape? Rape is defined under Section 90 of the Penal Code Act No.17 of 2003 (as amended) in the following terms:

"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 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 married person, by impersonating that person’s husband’s wife;

commits the offence of rape. The offence is complete upon penetration."

The brief facts in this case show the following:

On 11 December 2006, the victim and her friend by the name of Kathy Jacob went to a person by the name of NaukaTuan and Louis Kaua’s garden to pick gabbage (susut) tops after they had asked permission from them. (Louis Kaua is the wife of the Defendant). While they were walking along the road to the garden, they saw the Defendant who followed them from behind. They spoke to him telling him that they are going to pick susut tops at his wife and Nauka’s garden. The Defendant told them that he also going to that garden. During their way to the garden the Defendant started to ask Kathy to allow him to have sexual intercourse with the victim. At that time Kathy told him that he cannot do that because the victim is from Isangel and that she is also from the group of Bahai Faith Youth visiting their area at Middle Bush. After those discussions, Kathy was scared of the Defendant so they went to another garden before heading off to the garden they intended to go to – with the intention that the Defendant will leave the intended garden before they go to that garden.

After some time in another garden, the victim and Kathy went up to the intended garden. At the garden the victim went to pick susut tops and her friend Kathy went to get pawpaw. While they were busy doing those things they were shocked to hear that Sam Beau was asking the victim to have sexual intercourse with him. The victim felt so scared of the Defendant that she walked to Kathy and they decided to walk home.

Still at the garden the Defendant grabbed to the victim’s shirt but the she hits hands off her shirt and went and hang on Kathy. The Defendant told the victim that she must not hang on Kathy or he will cut both their neck off. Kathy spoke to him saying the victim is a student and is from Isangel, and persuades the Defendant not to do anything to the victim. The Defendant then told them if they know he is a criminal or not. He said he is a top criminal and that he does not count the police. While they were talking the victim was still hanging onto Kathy’s hand. After the Defendant spoke those words, he took his catapult (lastic) out and put a stone on it and shot the victim and Kathy but the stone landed on Kathy’s right side ribs. The victim started to cry for Kathy when the Defendant went up to her and kicked her chest with shoes he was wearing. The victim felt to stop breathing at that time, but she was helped by Kathy. While Kathy was helping the victim who was crying, the Defendant shot them again with a stone from his catapult (lastic) but the stone missed them.

The Defendant then went up to the victim and Kathy. He grabbed the victim by her hand from Kathy and pulled her up closed to a Nabanga tree. At that place, the Defendant asked the victim to lie down and that he will have sexual intercourse with her. He asked her to remove her clothes but she refused. He removed the victim’s clothes and asked the victim to spread her legs out but she refused. The Defendant spread the victim’s legs and then had sexual intercourse with her. During sexual intercourse, the victim felt pain in the vagina. The Defendant penetrated the victim until he ejaculated.

After intercourse, the victim says that the sun was ready to set. The Defendant then took the victim back to the village, to his home and removed a mattress at his home and led the victim into a bush house where he had sexual intercourse with her again. During sexual intercourse the victim felt so much pain and she cried so the Defendant stopped.

Then the Defendant got up and took the victim to the end of the village. At the end of the village the Defendant asked the victim to have sexual intercourse with her again, but the victim refused and asked him why he is doing this kind of actions to her. The Defendant told the victim not to speak or he will kill her. Then the Defendant removed the victim’s clothes again forced her to spread her legs out and penetrated her for the third time. The victim at that time felt so much pain.

After that they stayed the night together until early in the morning when the victim returned back to where she was living at that time. At that time when she left, the Defendant followed her so she run away and was crying.

During the time the Defendant pulled the victim from Kathy, Kathy returned back to the village and told the people there and a search for the victim was made till late but they could not find her.

On 13 December 2006, the victim was taken to Lambu Dispensary when a medical examination was made. The findings from the examination as stated in the medication report are:-

• Her virginity has gone
• Erosion means read and swollen cervix
• Laceration (tear) on both sides of her private part
• Legs very painful/bruises on both legs
  

As a result of the medical practitioner’s findings, it was stated as opinion that the victim was very badly abused, and that the innocent young girl is psychologically affected. And that she had lost hope especially trusted anybody.

The victim was at the time of the offence 15 years of age and studying at Corner School, Isangel.

The relevant cases dealing with the offence of rape are the judgment of the Supreme Court in PP v. Ali August in Criminal Case No.14 of 2000; the judgment of the Supreme Court in PP v. Mark Kapita and Peter Roy delivered on 17th September 2002. The cases were applied by the Court of Appeal in the case of PP v. Maslea Scott and Jeremiah Tula, Criminal Appeal Case No.02 of 2002 and others. The rational of these cases are as follows:-

"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 hold 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.

Where the Defendant’s behaviour has manifested perverted or psychopathic tendencies or gross personally disorder, and where he is likely, if at large, to remain a danger to woman for an indefinite time, a life sentence will not be appropriate.

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 the 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 ⅓ depending on the circumstances, including the likelihood of a finding of not guilty had the matter been contested.

The fact that the victim may be considered to have herself in danger by acting imprudently (as for instance by accepting a lift in a car from a stranger) is not a mitigating factor, and the victim’s previous sexual experience is equally irrelevant. But if the victim has behaved in a manner which was calculated to lead the Defendant to believe that she would consent to have sexual intercourse, then there should be some mitigation of the sentence. Previous good character is of only minor relevance."

In the present case, the following aggravating factors are present:-

• The Defendant had used violence over and above the force necessary to commit the rape;
• The Defendant had used a weapon to frighten or wound the victim;
• Rape is repeated. The Defendant had raped the girl complainant on 3 different occasions;
• The victim is a girl of 15 years old;
• The effect of the rape crime on the victim. The medical report of 13 December 2006 shows the following:-
  • - The virginity of the girl has gone;
  • - There were erosion which means read and swollen cervix;
  • - There were laceration (tear) on both sides of her private part;
  • - Her legs were very painful. There were bruises on her both legs.
    

Further the probation report reveals that after the offending, the victim girl has had problems with her studies. The effect of the crime affected the girl in her social relationships. She stated the offender had made her lost her virginity. She is affected in her work for the church as a secondary school teacher. She should have been promoted to teach 12 years old and upward but she missed out because of the effect the rape committed on her person has had on her.

She refused any custom ceremony by the Defendant. At the time of the offending, she was in Year 7 at Isangel Central Primary School. She has been continuing her education after the offending and is now in Year 8. She lives with her parents on Tanna.

The prosecution submits that, considering these aggravating features, the starting point for sentence is 8 years and they will increase the length of sentence coupled with the fact that the Defendant had abducted the victim and hold her captive. The prosecution submits for a sentence of 13 years imprisonment.

In mitigation, the defence submits that the Defendant is a young man of 23 years old. He is a gardener. He finished school in class 6. He pleads guilty to rape crime. He had intended to perform a custom ceremony but it is not performed. The defence counsel concedes that the starting point of the imprisonment sentence is 8 years based on the aggravating factors mentioned by the learned prosecutor. The defence counsel acknowledges that the offence of rape is not to be tolerated and the function of the Courts is to enforce the criminal justice system. The defence counsel accepts the report provided by the Probation Officers and commented that it is more than fair as the rape committed by the Defendant, will have more serious effect on the life of the victim girl.

The defence said the Defendant said he did not feel any remorse at the time and after the offending. He was not afraid of going to jail. The defence counsel says, these are the expression of an immature young man.

The defendant feels that the offence has passed and he now says sorry of what he had done.

The Defendant’s counsel submits that a starting point is 8 years with aggravating factors, the total sentence should be 10 years.

In the present case, as the probation and defence counsel concede, the circumstance of this particular case warrants an immediate imprisonment.

The Defendant is reminded that he "cannot obtain his sexual gratification at the expense of the weak and the vulnerable. Men who take advantage sexually of young people forfeit their right to remain in the community. It is only in exceptional circumstances that an imprisonment sentence be suspended". [See PP v. Kevin Gideon, Criminal Appeal Case No.03 of 2001].

Let me remind the Defendant and other members of the communities of the following:

"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..."

For rape committed 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 hold her captive (as in the present case) the starting point should be eight years.

The starting point of 8 years must be increased taking into account of the following aggravating factors:-

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 victim is young;

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

The sentence is increased to 15 years.

After a proper discount made for the guilty plea, the relatively young man and as a first time offender and the fact that the victim shows sign of recovery after the offence, I reduce the total sentence to 10 years of imprisonment.

I sentence the Defendant, Sam Beau, for 10 years imprisonment with immediate effect. The Police Officers and Correctional Officers are required to comply with this sentence without delay.

14 days to appeal.

DATED at Isangel, Tanna this 13th day of April 2007

BY THE COURT

Vincent LUNABEK
Chief Justice