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Public Prosecutor v Mulrunel [2005] VUSC 75; Criminal Case No 036 of 2005 (10 June 2005)

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

Criminal Case No. 36 of 2005

PUBLIC PROSECUTOR

–v-

KALOSEN MULUNREL

Coram: Justice P I Treston

Mr. Kalmet for Prosecution
Mr. Tavoa for Accused

Date of Sentencing: 10 June 2005

SENTENCE

Mr. Kalosen Mulunrel, you appear for sentence today on a charge of rape. That was an alternative charge to charge of incest because incest was part and parcel of the factual scenario. Of course when you plead guilty to one alternative the other alternative will be withdrawn by leave and I have done that. The maximum penalty for rape is life imprisonment.

It was sometime in July 2004, when you committed the offence of rape. The victim was the daughter of your wife by a previous relationship and she was aged eighteen years. This happened at Mahe village, Central Malekula, and you accept that in fact the victim is virtually regarded by you as your own daughter because of the family relationship. She was asleep when this occurred on the first occasion and you took hold of her and took her into your room and locked the door. She cried out loudly when you were forcing her to go to the room but you hit her on the backside and slapped her. She anticipated what you intended to do and was crying and sobbing. You removed her clothes, took down your pants and finally penetrate her vagina with you penis. She suffered pain because she had not yet had intercourse before. You warned her not to tell her mother about the incident otherwise you would kill her and, totally to your discredit, you continued to have non consensual sex with her the next day and twice on the day after. You then continued to have sex with her in the bush even though her mother, your wife, had returned home from hospital. The victim fell pregnant to your intercourse. You continued to have sex with her until she was two or three months pregnant. Because of your threats, the victim did not report the unlawful acts done to her until she went for a medical check up. She finally went to the police and gave a statement on 5 April of this year when she identified you as the father of her child. You were arrested on 7 April 2005 and admitted the allegations made against you.

In his submissions, the Public Prosecutor identified aggravating features as including the force you used to have intercourse with the victim, the careful planning of the rape, the fact of the victim's young age and the beach of trust by you as step father to the victim. The principles set out in the case of the Public Prosecutor v August [2000] VUSC 73; Criminal Case no. 14 of 2000 were relied upon by the Prosecutor to submit to this Court that a starting point of eight years imprisonment was appropriate. The Prosecutor submitted that a balance should be made of aggravating features and mitigating ones in arriving at a final sentence. It was accepted that you are a first offender.

In mitigation, you lawyer submitted to the Court details of your personal history which indicated that you are fifty-three years of age, you are married with four children, three from your wife and the one from this rape. It was confirmed that you regard the victim as your daughter, details were given about your earnings from making copra and selling garden produce. Your wife is unemployed but works as a gardener or farmer. You have no previous criminal history. It was submitted that you have demonstrated your remorse and contrition by your guilty plea and have spared the victim the trauma of a Court hearing. You wanted to undertake a custom settlement but your custodial arrangements have precluded that. It was submitted that the bleeding suffered by the victim on the first occasion was as a result of her being a virgin. Your lawyer accepted the starting point of eight years imprisonment but submitted that the mitigating factors should reduce that to somewhere between two and five years imprisonment. Letters from the local chiefs were produced setting out the difficulties that imprisonment would have for you and even a letter from the victim was produced asking the Court to return you home to look after her child and the other children. I take those matters into account.

As sentencing Judge, I must note your accountability for the harm done not only to the victim but also to the community at large by this offending. I must emphasize your responsibility as an offender and denounce your conduct. I must deter you and other likeminded people from offending in this way. I must protect the community from this sort of offending where it involves aspects of a breach of family relationships.

Sentencing generally involves considering a balance of aggravating and mitigating factors and as was said in the August Case which I have already referred to: -

"The offence of rape is always a serious crime. Other than in wholly exceptional circumstances rape calls for an immediate custodial sentence. That is 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 emphasis public disapproval. Thirdly to serve as a warning to others. Fourthly to punish the offender, and last by no means least, to protect women"

I adopt and endorse those sentiments of the Chief Justice. His Lordship went on to say that: -

"For rape committed by an adult without any aggravating or mitigating features a figure of 5 years should be taken as a starting point in a contested case."

He went on to say that where rape is committed among other circumstances by a person who is in a position of responsibility towards the victim, the starting point should be eight years. Both lawyers, the Prosecutor and the lawyer for you, conceded that that was an appropriate starting point.

His Lordship went on to say that where there are elements in a list of aggravating features, the sentence should be substantially higher than the figure suggested as a starting point. Here, there are significant aggravating features including: -

1. The actual use of violence over and above the force necessary to commit the rape;
   
2. The fact that you were abusing a position of trust and authority in relation to the victim;
   
3. The victim was vulnerable because of her relatively young age as compared to you;
   
4. The rape was repeated;
   
5. The rape was carefully planned when you wife was away at hospital;
   
6. The victim was relatively young;
   
7. The effect on the victim of physical pain;
   
8. You threatened the victim that you would kill if she told your wife about what had happened.
   

Clearly all these aggravating features are serious enough to add in my view two years to the starting point. In saying that I take into account the ameliorating effect of the matters in mitigation. They include your plea of guilty which has spared the victim the trauma of having to give evidence in Court in front of strangers and, of course, you are a person with no prior criminal convictions although the Chief Justice said in the August Case that previous good character is of only minor relevance. I agree that to an extent your remorse and contrition is demonstrated by the entry of that plea of guilty. I accept that although no compensation or reparation under custom has been made under section 119 of the Criminal Procedure Code [CAP. 136], you wanted to do and intend to do so ultimately when you are able.

Applying the principles that I have outlined to your case, I arrive at the conclusion that the aggravating features outweigh by a significant margin the mitigation ones and that is why I have conceded that the appropriate starting point in your case should be ten years imprisonment. I cannot accede to the requests of the Chiefs and your daughter that you should immediately be returned to the village to support your family. You must pay your debt to the society first. From the starting point of ten years, I immediately deduct one-third of that sentence for your plea of guilty and for the other mitigating factors. I also deduct a further two months custody from the figure to recognize the time that you have spent in custody. I also deduct another six months for your intention and good will in relation to potential custom settlement.

Having done all that I arrive at a final and finite sentence of six year imprisonment and you are sentenced accordingly to six years imprisonment for the offence.

You have 14 days to appeal that decision.

Dated AT PORT VILA, this 10th day of June 2005

BY THE COURT

P. I. TRESTON
Judge