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Public Prosecutor v Kalgai [2005] VUSC 58; Criminal Case No 024 of 2004 (4 April 2005)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Criminal Jurisdiction)

Criminal Case No. 24 of 2004

PUBLIC PROSECUTOR

-v-

VIDEL KALGAI

Coram: Justice Hamlison Bulu

Counsels: Mr. Lent Tevi for the Public Prosecutor

Mr. Jacob Kausiama for the Defendants

Date of Hearing: 30th March 2005.

Date of Judgment: 4th April 2005.

SENTENCE

INTRODUCTION

1. On 4 August 2004 the defendant was charged with rape contrary to sections 90 and 91 of the Penal Code Act [CAP. 135].
   
2. The Defendant was committed to stand trial in the Supreme Court on 7th September 2004 and remanded in custody on 5th August 2004.
   
3. On 7th September 2004 the defendant did not appear in Court and the matter was stood down to the next plea day.
   
4. On 8th September the Court issued orders for the accused to remain in custody.
   
5. On 9th September the defendant applied to be released on bail. The Court refused the application.
   
6. On 24th September 2004 the defendant applied again to be released on bail to await plea. The application was successful and the defendant was released on bail.
   
7. Plea was set down for 8th October 2004. Plea did not take place due to unavailability of counsels.
   
8. Next plea day was set for 1st February 2005. Plea could not take place as the defendant was not in Court. Plea was put off to 24th March 2005.
   
9. On 24th March 2005 the accused took his plea and pleaded guilty to the charge of rape contrary to sections 90 and 91 of the Penal Code Act [CAP. 135].
   

FACTS

10. The victim had just commenced employment as a kindergarten teacher in a school in Loloma village in the Eratap area. The school is some distance from her village and she has to walk to school everyday.
    
11. On 14th July 2004 she left early, about 6 a.m. for school. On the way she met you. She recognized you and greeted you. You enquired as to where she was going. The victim told you that she was going to Loloma where she now teaches at the kindergarten.
    
12. As the victim went ahead of you, you reached out from behind her and grabbed her hands firmly. She asked you “what do you want to do to me” and started to cry.
    
13. You held on to her firmly and pushed her towards a taro and manioc garden. She struggled to free herself from you but you held her firmly and pushed her towards the garden. You removed your t-shirt and placed it in a clearing in the garden. You forced the victim down on to the t-shirt and removed her tights and underpants. The skirt was left on.
    
14. You asked the victim not to cry loudly and told her to open her legs. She refused. You forced her legs open and sucked her vagina. You then positioned yourself over her and pushed a finger into her vagina. The victim continued to cry.
    
15. You then took your penis out through one of the legs of your trousers and penetrated her vagina for a short time. You did not penetrate her fully as she continued to complain of great pains in her vagina. You then withdrew.
    
16. Next you forced the victim to kiss you.
    
17. Then, you both stood up and you told the victim to put on her clothes.
    
18. The incident was reported to the police in Port Vila on 17th July 2004.
    

AGGRAVATION

19. The following aggravating features are present in the circumstances of this case:-
    
    • (a) There was force used necessary to commit rape;
      
    • (b) The victim is young (16 years at the time of rape);
      
    • (c) The victim was subjected to further indignities; pushing of a finger into her vagina, biting her on her right chest;
      
20. The guideline judgment in rape cases is the case of Public Prosecutor –v- Maslea Scott and Jeremiah Tula, Criminal Appeal Case No. 2 of 2002; [2002] VUCA 20. In relation to sexual offences the Court of Appeal said that “it will only be in the most exceptional of cases that suspension could ever be contemplated in a case of sexual abuse.”
    
21. Whatever the circumstances in individual cases of rape, when it happens it is an abuse of the victim by the rapists. All he cares about is himself and the pleasure and satisfaction that he will obtain from raping the victim. He is not concerned about the short tem and long term effects of his action or actions on the victim.
    
22. This is a case which, in my view, does not come anywhere close to the “most exceptional of cases” referred to by the Court of Appeal in Tula & Scott. A custodial sentence would be the appropriate sentence in the circumstances. Rape is a serious crime and carries a maximum penalty of life imprisonment.
    

MITIGATING FEATURES

23. Counsel on your behalf has submitted the following as mitigating features:-
    
    • (a) You are 24 years old;
      
    • (b) You are a first time offender;
      
    • (c) You pleaded guilty at the first available opportunity given to you;
      
    • (d) You apologize to the Court and the victim for what happened;
      
    • (e) You have performed a custom settlement ceremony to the victim and her family. You gave the following through your chief at that ceremony:-
      

(i) white chicken;

(ii) some mats;

(iii) some food and kava.

The victim and her family accepted the custom reconciliation.

24. The guideline judgment in rape cases is the case of Public Prosecutor –v- Scott & Tula. I apply the principle to this case.
    
25. The starting point is 5 years.
    
26. There are certainly aggravating features. The figure has to be substantially higher. In my view, 9 years would be appropriate in the circumstances of this case.
    
27. I now consider the mitigating features.
    
28. You pleaded guilty at the first opportunity given to you. 1/3 is taken off.
    
29. You have performed a custom settlement ceremony to the victim and her family. You are a young man of 24 years and you are a first time offender. Another 2 years is taken off.
    
30. 2 months and 8 days is taken off for the time already spent in custody.
    
31. Videl Kalgai, I sentence you to a term of imprisonment of 3 years 9 months 22 days. You have the right to appeal this decision within 14 days.
    

DATED at Port Vila, this 4th day of April 2005.

H. BULU
Judge.