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Republic v Notte [2012] NRSC 18 (4 December 2012)

IN THE SUPREME COURT
REPUBLIC OF NAURU

Criminal Case No.119 of 2012

REPUBLIC OF NAURU

V

HUDSON NOTTE

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Criminal law – Sentence – Rape – Criminal Code of Queensland Act 1899, s.347 – Victim 16 years old, asleep and intoxicated – Offender 18 years old, intoxicated – Forcible rape – Early plea of guilty and genuine remorse – No prior convictions – Offender of limited intelligence – Sentence three years’ imprisonment.

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CHIEF JUSTICE:

1 Hudson Notte you have pleaded guilty to rape, an offence under section 347 of the Criminal Code Act of Queensland which carries a maximum penalty of imprisonment of life.
2 On the evening of 25 August 2012 the victim, a young girl aged 16 years, and her girlfriend had attended a party which went into the early hours of the following morning. At about 7am on 26 August 2012 the victim’s friend drove her home on a motorcycle but the victim was too embarrassed to go home as she was under the influence of alcohol. Eventually she was left by her friend beside the road. Her friend said she would come back later to collect her.
3 The victim lay down under a tree, and then you arrived on your motorbike. You were later seen riding with the complainant as your passenger. You were observed by a police officer to be apparently under the influence of alcohol. Whilst you were driving on the road the complainant fell asleep while sitting on the motorbike. You then drove off the road into the bush and drove further into thick undergrowth. You then stopped the bike and put your victim on the ground. She was fast asleep lying on the grass. You then unbuttoned and unzipped her shorts but you were unable to remove her shorts so you ripped them along the seam. Having opened her shorts you pulled down her panties, placed your penis in her vagina and had sexual intercourse. She woke up as you were doing so and found you on top of her, holding her down and pushing her face to one side away from you.
4 She struggled and kicked, trying to get you off her. She was in pain but she could not stop you. She begged you to let her go but you continued. She was eventually exhausted and surrendered and waited until you stopped. When you finished you got up and without saying anything to her, got on your motorbike and rode off, leaving her lying there in the bush. She picked herself up, found her panties and put them on but her shorts were too torn to wear. She was seen by a friend who took her home. Upon her arrival at home she had mud on her clothes and her shorts were torn. She complained that she had been raped.
5 The victim was taken to the hospital and medically examined where it was noted that she had bruising on her labia and vaginal lateral walls and that there was blood stained discharge on her cervix.
6 You were interviewed by police on 31st August 2012 and made a full confession to the rape. You expressed remorse for what you did. When you were asked whether you wished an officer to read back your record of interview, you said that you did not want to hear it again. In the interview you admitted that she was crying and telling you to stop. You said in your interview: ”I just want to apologise for the thing that I’ve done to that young girl”. Mr Tolenoa told me in open court that you wished to convey your apologies to your victim for the harm that you have done her. I accept that as being a genuine statement of remorse.
7 You are 18 years of age, having been born on the 28th February 1993. You have no prior convictions. Your pleader, Mr Tolenoa, made a careful and helpful submission on your behalf, urging that I extend leniency to you. He emphasised the fact that you pleaded guilty at an early stage, and that you have no prior convictions. He also stressed your youth, which means that you have good prospects of rehabilitation. I accept all of those submissions. They are all important matters to take into account.
8 You live with your parents and four other siblings. You are the second eldest child. Your family describes you as being very quiet. All of your family members are dependent on your father. He works as a security officer. You have been helpful to your parents from time to time when illness or other reasons have required someone to look after the younger siblings. You go fishing with your brother to supplement the family food supplies.
9 Your family have described you as being a person of low intelligence and as acting like a child at times. You have shown low maturity for your age. At a very early age, when you were only about 11 or 12 years, you dropped out of school because you were being bullied. Your parents tried very hard to get you back to school, but without any success. You spent most of your childhood at home, but from about the age of 14 began to associate with older boys and began smoking and drinking heavily.
10 The victim in this case declined the opportunity to make a victim impact statement. The doctor reported that she had been sexually active prior to this assault, but that in no way reduces the seriousness of this assault. The victim was a very young girl who had been subject to a frightening assault which took place when she was asleep, and was vulnerable through drunkenness. You were yourself affected by liquor. Although you did not strike her, or use direct physical violence, the rape was nonetheless a forcible one, and was conducted despite her protests and attempts to push you off her.
11 Mr Kurisaqila has submitted that there’s a prevalence of violence against women in Nauru, which should attract a deterrent sentence. He acknowledged, however, that you should receive a significant discount on sentence because of the factors identified by Mr Tolenoa. I have taken those factors into account and made a substantial discount on the sentence that I would have otherwise imposed for an offence as serious as this.
12 Mr Kurisaqila submitted that the range of sentences in Nauru for rape was from 3 years to 7 years.
13 Your counsel referred me to some past sentencing decisions of the court in similar cases, including Republic V Daniel Adam [2008] NRSC 16, 19 December 2008, and Republic V Scotty [2008] NRSC 5, delivered 12 March 2008. In the Adam case the offender was on bail awaiting trial for another offence when he raped a 16 year old girl. He pleaded guilty and was sentenced to four years imprisonment. Adam was a married man aged 23 years. In the case of Scotty the victim was 19 years of age and was asleep in the house where the offender lived. Scotty was a married man with teenage children. He had no prior convictions and was sentenced to 3 years and 9 months imprisonment.
14 Having regard to what I think is your low level of intelligence, your lack of prior convictions, your youth, your plea of guilty and genuine remorse, the sentence I impose is three years’ imprisonment, to commence on 26 November 2012.
4 December 2012
Geoffrey M Eames AM QC
Chief Justice