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Public Prosecutor v Kamiti [2007] VUSC 96; Criminal Case 63 of 2007 (16 November 2007)

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

Criminal Case No. 63 of 2007

PUBLIC PROSECUTOR

-V-

SIMEON KAMITI

Coram: C.N. TUOHY

Date of Hearing: 16 November 2007
Date of Decision: 16 November 2007

Counsels: Mr. Molbaleh for Public Prosecutor
Mr. Bartels for Defendant

SENTENCE

1. Simeon Kamiti you appear for sentence having pleaded guilty to two charges of rape. The victim is the sister of your wife, and the victim was either 14 or 15 at the time of this offending. I have been given different figures. Mr. Bartels this afternoon said 14, the brief summary says that she was 15. I will sentence you on the basis that she was aged 15. Even that means she was under the age of consent for a woman and she was and is a child.

2. I don’t need to repeat in full the facts on which you pleaded guilty, except to say that the summary says that she refused your demands for sex on at least two occasions, but you obtained your way with her by using force to push her to the floor and then to penetrate her. She suffered pain during the act and cried out called for her mother. You told her to be quite and she cried louder saying that was enough.

4. The summary of facts indicates that sexual intercourse took place a total of five times but you have pleaded guilty to only two acts, one at the house and one at your work, and I will sentence you on the basis that there was rape on two occasions.
   
5. The Courts have sadly had to sentence people in Vanuatu for rape on numerous occasions. The principles on which the Court sentences are very well known. As the Chief Justice said in the case of Public Prosecutor v. Ali August, the offence of rape is always a most serious crime. Other than in wholly exceptional circumstances, rape calls for an immediate sentence of imprisonment. The fact that the law considers rape extremely serious is shown by the maximum penalty which is life imprisonment. The Court of Appeal has said this about rape:
   

"Men must learn that they cannot obtain sexual gratification at the expense of the weak and the vulnerable. Men who take advantage sexually of women (and of course girls), forfeit the right to remain in the community".

6. The length of a sentence of imprisonment for rape has been set out in a decision of the Chief Justice called Public Prosecutor v. Ali August which was confirmed by the Court of Appeal in a case called Public Prosecutor v. Scott and Tula. The Chief Justice said that for rape committed by an adult with no aggravating or mitigating factors or no factors which make it worse or less bad a figure of 5 years should be taken as the starting point in a contested case, that is, one where there has been a trial. He then set out a number of factors which make the offending worse, which would mean the normal starting point should be substantially higher. Some of those aggravating factors are present in your case. Some things that make this rape worse are as follows:
   
   1. The age of the victim, she was fifteen, still a child
   2. You were in a position of trust in relation to her. She was living in your home as one of your family members and that makes it worse.
   3. You used some considerable force on her to overcome her resistance and caused pain to her.
   4. This was not one act of rape, it was two
      

I consider that an appropriate starting point is 7 years. But one must then look at the things in your favour. I have read the pre-sentence report for which I thank the Correctional Services, it is helpful and I have heard the submissions of Mr. Bartels who has said everything that could be said for you.

7. The first thing is that you have pleaded guilty and that will be the reason for a substantial reduction in the term of imprisonment, because pleading guilty saves the victim from having to give evidence. And it shows that you at least admitted what happened which is the start of putting it behind you.
   
8. Also you are a first offender. On the other hand I was concerned to read that according to the family of the victim you have been in a habit of using domestic violence or being violent towards your partner. You are not charged with that. But it does concern me. No woman should ever accept being beaten up if that’s what happened, and I only say that because I know that your woman is here.
   
9. Anyway, also in your favour is that you have offered to do a custom ceremony. I can understand why the family do not want that now. They say according to the pre-sentence report that you have done custom ceremonies in the past to say sorry but it has made no difference to your behavior.
   
10. However, I am going to give you the full 1/3rd reduction in the sentence for the things in your favour, pleading guilty and the offer of a custom ceremony. That reduces the sentence to 4 years and 8 months. As well as that the time that you have already spent in custody has to be taken off the sentence, and that is 2 months and 4 days. As far as I can establish you were put into custody not earlier than 12 September and I have used that date. So the final sentence of the Court is that you are to be in prison for a sentence of imprisonment of 4 years 5 months and 26 days. If you are not satisfied with the sentence you have 14 days in which you may appeal if you wish to.
    
11. One thing I would like to say is that obviously the law permits you to be released earlier than the expiry of the sentence, providing you perform well in prison. I would ask you to use the time in prison to look back at what has happened and to make up your mind to change when you come out and live a good life from that time.
    
12. Of course there are two charges here the sentence is imposed on the two charges but they both run at the same time. So the effective sentence is 4 years 5 months and 26 days.
    

Dated at Port Vila this 16th November 2007

BY THE COURT

C.N. TUOHY
Judge