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Public Prosecutor v Ben [2005] VUSC 108; CRC 052 2005 (9 September 2005)

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

Criminal Case No. 52 of 2005

PUBLIC PROSECUTOR

–v-

OBED BEN, PAKOA MATAI, KALKAU ARTOL, ALBERT ANDREW, RICHARD MORRIS, BOB BORAI and BEN JIMMY

Coram: Justice Treston

Mr. Kalmet for Public Prosecutor
Mr. Kausiama for Accuses

Date of Plea: 06 September 2005
Date of Sentence: 09 September 2005

SENTENCE

Each of you, Mr. Obed Ben, Mr. Pakoa Matai, Mr. Kalkau Artol, Mr. Albert Andrew, Mr. Richard Morris, Mr. Bob Borai, and Mr. Ben Jimmy have pleaded guilty to a charge of rape. As the lawyers have said, that is a serious charge because the maximum potential sentence is life imprisonment.

What happened occurred on 26 December last year at your village, Epau village, Northeast Efate. The complainant who is now 16 years of age was 15 it seems at the time. There was a dance party going on at a nakamal. Mr. Obed Ben, you started the whole thing off by taking her away from where the party was to a worn-out nakamal and closing the door. She did not want to go with you but you forced her into the nakamal and pushed her to the ground, you then, despite her objections, had intercourse with her, you told her to remain there and then the other six of you also had sexual intercourse with her against her consent. That was a disgraceful incident and it was one of the most serious rapes because each of the seven of you committed it, one after the other.

The public prosecutor submitted to me that because of the maximum potential sentence and because of the aggravating features, which he identifies, the sentences should be significant. He submitted to me that some violence was used to initiate the incident and of course you are all responsible for what Mr. Obed Ben did at the start of the whole incident in forcing her to the abandoned nakamal and forcing her to the ground, so the prosecutor submitted that force and violence was an aggravating feature. He also submitted to me that the fact that the rape was repeated six more times was an aggravating feature and there were clearly elements of planning because each of the rest of you was immediately ready to have your own way with the victim once the one before had finished. Clearly there are also some significant effects upon the victim that she has perhaps make somewhat light of by saying that she feels ashamed when she sees her families at the market place but the deep seated effects of these events upon her will no doubt not manifest themselves until later. The prosecutor accepted that the custom settlements which have taken place ought to be taken into account but submitted that the Court cannot exchange the appropriate sentence for anything less because of the compensation under custom alone. The prosecutor submitted in summary that the starting point in accordance with guidelines that I shall refer to shortly should be 8 years imprisonment reduced for your pleas of guilty and account taken for the compensation by custom.

On your behalf, the public solicitor gave all the details that I will refer to shortly. He submitted that there was no particular violence used and that the offences rather than being carefully planned were opportunistic. Your lawyer submitted that I should give you an appropriate reduction for your pleas of guilty and for the settlements and reconciliation which have been made. He also submitted on behalf of the three of you who are only 15 years of age, and thus less than 16 years of age that you should be not imprisoned but a suspended sentence should be imposed upon you. I am asked also to give you all credit for the time you have spent in custody.

Mr. Obed Ben, you are 18 years of age and you are single, you are a first offender and you have pleaded guilty which avoids, as your lawyer has said, the ordeal of the victim having to give evidence in Court. As all of you do, you apologize to the Court, the victim and the people of your village. You are all members of the Presbyterian Church and all of you effectively say that your time in custody has been a life moving change for you. As I say custom ceremonies have been completed and Mr. Obed Ben then, yours was in the vicinity of VT25,350.

Mr. Pakoa Matai, you are 23 and the oldest of the group and should have known better because of your age. Like the others you are a first offender, and have pleaded guilty. You are a gardener. You apologize and your custom ceremony settlement was VT49,250.

Mr. Kalkau Artol, at 17 years of age, you largely said the same things and your custom settlement was VT19,800.

Mr. Albert Andrew, you are one of the 15 year olds and say the same things and the custom ceremony was VT19,200.

Mr. Richard Morris, you are 19 and your custom ceremony was VT23,550.

Mr. Bob Borai, you are also 15 years of age and your custom settlement was VT31,250.

Mr. Ben Jimmy at 15 years of age, your settlement was VT19,200.

As I say all of you pleaded guilty, have apologized and express remorse and contrition.

Counsel referred me to the Court of Appeal decision in relation to rape sentencing, namely Public Prosecutor v Wayane & ors CAC No. 8 of 2000. That effectively echoed and approved what the Chief Justice had said in the case of Public Prosecutor v Ali August Criminal Case no. 14 of 2000. The Chief Justice said this: -

"The offence of rape is always a serious crime. Other than in wholly exceptional circumstance, rape calls for an immediate custodial sentence. That 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 by no means least, to protect women"

His Lordship went on to say that for a rape committed by two or more men acting together, the starting point should be 8 years imprisonment. That can be increased by a number of aggravating features including some of the elements present here. First the force used to take the victim to the old nakamal and put her on the ground. Next, the rape was repeated by all seven of you. Next, the rape had been planned in one way or another and I am satisfied of that because of the nature of the offence that this was so and next because the victim was relatively young at 15 or 16 years of age. The aggravating features in my view, increase the starting point for these rapes to 10 years imprisonment.

Of course, there are deductions that I will refer to shortly.

When I do sentence you, I am required to express my denunciation of your conduct. You and others must be deterred from acting in this way, in this case particularly where it was seven of you involved. I must protect the community and especially young women as the Chief Justice said. While I give you all credit for your pleas of guilty and for the compensation which has been made, and that is under section 119 of the Criminal Procedure Code [CAP. 136] and I am required by this section to take into account any compensation or reparation given by you under custom, I must impose appropriate sentence. While a mitigating factor is that you are each a first offender, the Chief Justice said in cases like this previous good character is of only minor relevant.

As I have said, I consider that the appropriate starting point for what is effectively a gang rape is 10 years imprisonment. From that term, I allow you as the Chief Justice has suggested in the August case a deduction of one-third for your pleas of guilty. I also allow in that deduction other matters such as your previous unblemished records, your apologies to the victim and to the Court and to your village and the relative young age of some of you. I also allow you approximately a further 18 months reduction in sentence for the compensation by way of custom. I note from the prosecutor that the victim has not obtained all of the items and moneys that were paid by way of compensation but that some of that has, according to custom, been distributed to her parents and families, but I take into account that compensation and reparation made under custom. That effectively leave me when I make the calculation with a sentence of 5 years and 2 months approximately being the appropriate sentence for these rapes. Each of you has been in custody for periods of just over a month or for 3 weeks, I allow effectively a further month or so for the time you have been in custody and I arrive at the sentence of 5 years and 1 month for this offence.

I am particularly mindful that 3 of you are aged only 15 years, that is Mr. Albert Andrew, Mr. Bob Borai and Mr. Jimmy Ben. I know that section 38 (1) of the Criminal Procedure Code [CAP. 135] provides that no person under 16 years of age shall be sentenced to imprisonment unless no other method of punishment is appropriate. All of you, however, carried out very adult behaviour in relation to raping this victim. I have already made quite clear my view, as set out by the Chief Justice previously, that the offence of rape requires an immediate custodial sentence unless there are wholly exceptional circumstances. Each of you at 15 years of age carried out, as I say, an adult action in relation to a helpless victim. Despite what the prosecution says I do not consider any other method of punishment other than imprisonment for such a serious offence is appropriate, particularly in the circumstances of this case and I consider that each of the three of you who are aged 15 must also serve the same penalty as your co-offenders. So I do not differentiate between any of you as far as sentencing is concerned even bearing in mind your different ages, and bearing in mind that it has been agreed that you, Mr. Kalkau Artol, will marry the victim on your release.

Accordingly, each of the seven of you is today sentenced to imprisonment for 5 years and 1 month and you have 14 days to appeal that sentence if you are dissatisfied with it.

Dated AT PORT VILA, this 09^th day of September 2005

BY THE COURT

P. I. TRESTON
Judge