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Public Prosecutor v Frank [2005] VUSC 144; CRC 076 2005 (15 December 2005)

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

Criminal Case No. 76 of 2005

PUBLIC PROSECUTOR

–v-

JIMMY FRANK
CHARLEY DON

Coram: Justice Treston

Mr. Obed for Public Prosecutor
Mr. Bartels for Defendant

SENTENCE

Mr. Charley Don and Mr. Jimmy Frank, each of you had pleaded guilty to a count of rape, that is a particularly serious offence here in the Republic of Vanuatu because the maximum potential sentence is life imprisonment for each of you. This happened on 19 November 2005 at about 5am in Port Vila. The complainant is 23 years of age, Mr. Charley Don, you are 15 years of age and Mr. Jimmy Frank, you are 29 years of age. The victim had been to a wedding ceremony at Anamburu area, she did not want to come home in the early hours of the morning because she was scared of potentially drunken people. However, about 4.30am, she and her aunt were making their way to the victim's home when they came across you. You offered to accompany the victim home and eventually you went away with the victim and Mr. Don, you were holding her hand firmly. She tried to getaway from you, but you blocked her mouth and threw her to the ground. She got up and ran away to a neighbour's yard but you located her again and dragged her back to the place where you had earlier been struggling. There you removed her trousers and her panties and penetrated her by way of rape. Mr. Jimmy Frank, you were behind the couple when they were having that unlawful intercourse, you were half dressed, you took over when your co-offender committed the crime and penetrated the victim again. A taxi came across you, Mr. Don, you made your way off, Mr. Frank, you were apprehended and taken to the police station. Mr. Don, you were allocated afterwards and were arrested. The victim suffered some lacerations to the back of her elbows and the back of her buttocks and although you may not be aware of it, she was also 21 weeks pregnant. I have had the benefit of a report and a statement from the victim provided by the prosecution. She said she did not feel good anymore and she felt shame as a result of what had happened. She said the incident kept on repeating in her mind. She never thought or expected that something like that would happened to her, she feels constrained now in going out walking and doesn't want even to visit her families as she did before, she said that she doesn't visit her friends anymore. She conferred what your lawyer had said in that she would not accept any custom settlement although you tried to deal with the matter by way of compensation by custom.

The prosecutor had submitted to me that in the vicinity of 8 years and an allowance for guilty plea. He refers to the Ali August Case which is somewhat the bench mark for rape sentencing and I will refer to that later. He identifies the aggravating features as the force used, the repeated act of rape and the fact that there were two of you. There were some talk about threats but that was not warn out in the summary as the defence lawyer has said. The prosecutor accepts that there should be an allowance for a plea of guilty and concedes that each of you are first offender. The Public Solicitor has dealt with the matter with helpful submissions. He refers to your young age Mr. Don, you come from Emau island and are single and unemployed, you lived at Freshwota No. 4 and your parents lived at seaside. You were educated up to class 6 and the third born in the family of five children, you attended the Presbyterian Church at Takara Village and your future ambition is to become a carpenter. You now through your lawyers express remorse and contrition, you are shameful and you tried to deal with the matter by way of compensation by custom. You hope on your release to make good the wrong you had done. On your behalf it is argued that no significant injury was caused on the victim. You are a first offender and had pleaded guilty which speared the victim from the trauma of giving evidence about the incident. You are a young man aged 15 years and your lawyer had stressed that together with the concern, he had about you mixing with older and wiser felons. Section 58 of the Penal Code Act [CAP. 135] provides that no one under 16 years of age shall be sentenced to imprisonment unless no other method of punishment is appropriate. I am firmly of the view that no other method of punishment is appropriate for this serious crime. Rape is sometimes called an adult offence and you acted as an adult in committing this offence on the victim. In addition as your counsel had recognised, you could be called the instigator of this offence because it was you who forced the victim away. It was you who blocked her mouth and threw her to the ground. It was you who raped her first while you co-offender stood by ready to committed offence, so for those reasons as I am required by the law to give, I consider that there is not other way of punishment other than imprisonment is appropriate. Mr. Jimmy Frank, you are older 29 years of age, being older should be wiser but you also succumbed to the temptation of unlawful intercourse and took your turn. Clearly the victim did not consent and you recognised both of you by your plea. You come from Emau island also and single and a youth worker. You are a first offender and express remorse and contrition, you express shame and also tried to deal with the matter by way of compensation by custom. The same mitigating factors really applied to you although you took a marginal lesser proactive role in the whole crime. The lawyers have both referred in some details to the Chief Justice's decision in the Public Prosecutor v Ali August Criminal Case 14 of 2000 I do a little bit better but to echo of the Chief Justice who expressed the principles clearly, ..................and accurately. He said: -

"The offence of rape is always a serious crime. Other than in wholly exceptional circumstances, rape calls for an immediate custodial sentence. This was certainly so in the present case. A custodial sentence is necessarily 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"

The Chief Justice said that a starting point for rape committed by an adult without aggravating and mitigating features is 5 years in a contested case. However, he said that rape committed by two or more men acting together as you were the starting point should 8 years imprisonment. I took that as a starting point. The Chief Justice also pointed out various aggravating features which can increase the starting point from that 8 year term. For your case, that aggravating features include violence use over and above the force necessary to commit rape, because Mr. Don you threw the victim to the ground having held her very firmly, you blocked her mouth and then proceeded to rape her, you stood by Mr. Frank and a party to that, who raped again was repeated and the effect upon the victim in her every day life has been significant.

Clearly there are aggravating features which in my view mean that the starting point should be higher than the 8 years that I have referred to, I consider that it should be 9 years but I recognised that there must be a reduction for plea of guilty which I will refer to later. When one sentences offenders in general terms certain factors must be taken into account, both of you must be held accountable not only to the harm to the victim but also to the community. I must take into account the effect on the victim and denounce your conduct. I must deter you and other likeminded offenders from committing rape which are all too fraudulent in our society at the moment. I must also protect not only the victim but also the community, women of any age should feel free to wander the streets of Port Vila and Vanuatu generally without fear of being molested and raped and I must do all that is within my power to ensure that that is the situation. I have already talked about aggravating and mitigating features, I recap that there was actual use of violence in this case that there was an effect on the victim and there was a multiple rape which is highly traumatic for any person. By way of mitigation I have already referred to your circumstances Mr. Don, I give each of you credit for you plea of guilty. I take into account your expression of remorse and contrition, I take into account that each of your is determined upon your ultimate release to do what you can to put things right in the community for what you have taken from it. I take into account that each of you had previous good character with no previous conviction. From what I have already said it must be clear to you that there are no exceptional circumstances in this way that would mean that I could do anything other than oppose terms of imprisonment. I accept that although you had difference in age because of the fact that you, Mr. Don were the instigator matters were even themselves out as far as each of you is concerned. Let me tell you the result, the starting point that I talked about is 9 years imprisonment, from that I immediately deduct although not mathematical calculation as the Court of Appeal has said one-third to bring the appropriate sentence to 6 years imprisonment for each of you, bound in that allowances of course things such as your previous good character and some of the other factors that I have referred to but I particularly reduce the sentence again by 2 months in each case for your willingness and attempt to deal with the matter by way of compensation by custom. Each of you had been in custody for not quite a month but I allow a further month for the time you have been in custody already, under those calculations each of you is sentenced to imprisonment for 5 years and 9 months. You have 14 days to appeal that sentence.

Dated AT PORT VILA, on 15 December 2005

BY THE COURT

P. I. TRESTON
Judge