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Public Prosecutor v Maluk [2007] VUSC 17; Criminal Case 03 of 2007 (13 April 2007)

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

CRIMINAL CASE No.03 of 2007

PUBLIC PROSECUTOR

-v-

SAM MALUK

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 Maluk. Sam Maluk, you are charged with the offence of Rape, contrary to Section 91 of the Penal Code Act [CAP.135]. On 11 April 2007, you pleaded guilty to that offence of Rape.

As the cases show, Rape is always a most serious crime. Parliament recognizes rape as a most serious crime by imposing a maximum penalty for life imprisonment under Section 91 of the Penal Code Act [CAP.135].

The brief facts, in the present case, are as follows:-

Sometimes on 16 July 2004, the victim and two other friends by the name of Mary Iapiwan and Rennette Joe left their village at Loukakar village to attend a married ceremony at Imoklan village. They stayed at Imoklan village until the morning of 17 July 2004.

On the morning of 17 July 2004, the victim and her friends returned back to their village. On their way to home they saw you following them from behind. At a hill called Lakabiel, the victim asked her friends that they rest to let the Defendant take the lead. While they were you alone. You asked her two times but she refused. So you picked up a piece of wood on the road and wanted to assault them. The victim’s friends got up and run back down fast but the victim run down to a creek and you chased after and held her. Then you pushed her to the ground and pulled her up again and pulled her into the bush. In the bush, you asked the victim to have sexual intercourse with you but the victim refused. You tried to remove the victim’s panty but the victim refused. You then threatened to assault the victim that made her afraid so she removed her panty. After that you had sexual intercourse with the victim.

After intercourse, you asked the victim if you could stay there with her until dark but she refused. So you got up and went away.

The victim at the time of the offence was 20 years of age.

Rape is defined under Section 90 of the Penal Code Act [CAP.135] 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 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."

Section 91 of the Penal Code Act [CAP.135] prohibits the offence of rape.

"No person shall commit rape.

Maximum penalty is life imprisonment."

The following are what the Courts of the Republic of Vanuatu have reiterated again and again when they deal with a person or more than a person who commits the crime of rape:-

"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 bee 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."

[See PP v. Ali August, Criminal Case No.14 of 2003; Court of Appeal judgment in PP v. Maslea Scott and Jeremiah Tula, Criminal Appeal Case No.02 of 2002].

The prosecution submits that the following aggravating factors are present in this case:-

• You had used violence necessary to commit rape;
• The victim is young – 20 years of age at the time of offending.
  

From the fact, an additional aggravating factor exists: you picked up a piece of wood and wanted to assault the victim girl and her friend. This is equivalent to the situation of you using a weapon to frighten or wound the victim.

The prosecution submits that the appropriate sentence is that of 6 years imprisonment.

In mitigation, your counsel submits that you are 28 years old at the time of offending. It is said when you saw the girl, you developed some bad thoughts toward the girl. You frightened the girl with a piece of wood, pursued her and had sexual intercourse with her without her consent. You concede that you had committed an offence at an early stage, through your guilty plea. You understand your action will result in you be imprisoned. You show your remorse through your guilty plea.

This avoids the victim to come to Court and reveal her ordeal. You display courage by saying sorry. You said you were ready to perform custom ceremony but you said the other side are not prepared to accept a custom ceremony. You are a father of 2 children. You are a first time offender. The defence submits for a community sentence under Section 58N of the Penal Code Act (as amended in 2006).

Bearing in mind of what was said in other sexual cases dealt with in this session at Isangel, Tanna, this case, does not constitute an exception.

Rape is always a most serious offence. The gravity of such an offence; the public and community disapproval of such an offence; a warning to others not to commit the same type of offence; the punishment of the offender; and the protection of the rights of women and girls justify that case of this type warrants a custodial sentence.

The circumstance of the offending in this case, the aggravating factors justify an imprisonment sentence of 7 years. I take into your credit of your guilty plea; the fact that you are a first time offender; your apologies. I take it to be a discount of 2 years in your favour.
I sentence the Defendant, Sam Maluk, to 5 years imprisonment with immediate effect.

Police Officers and Correctional Officers to give effect to this sentence immediately.

14 days to appeal.

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

BY THE COURT

Vincent LUNABEK
Chief Justice