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Public Prosecutor v Rarua [2008] VUSC 16; Criminal Case 64 of 2007 (2 May 2008)

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

Criminal Case No. 64 of 2007

PUBLIC PROSECUTOR

v.

WILSON RARUA
BARRY PAKOA
NEWA KABEA
JAMES KELLY
BULE JOHN
MAXIME LEWAWA
PHILIP AVOCK
TERRY SAM
JIMMY JONAS

Coram: Justice C.N. TUOHY

Date of Sentence: 2 May 2008

Counsel: Mr. Standish for Public Prosecutor
Mr. Toa for Defendant

SENTENCE

1. These nine accused appeared for sentence having pleaded guilty to the charges facing them on the 4th February this year when they were convicted of the offences which I will set out in a moment. Originally they were to be sentenced on the 29th February but, solely because of a failed application to change their plea, the sentencing has been delayed until today.
   
2. The offences which they have been convicted of are the following:
   
   1. Wilson Rarua has been convicted of being a party to sexual intercourse without consent which I will call rape.
      
   2. John Bule, Maxime Lewawa, Jimmy Jonas, Barry Pakoa and Newa Kabea have all been convicted of rape.
      
   3. James Kelly, Philip Avock and Terry Sam have all been convicted of indecent assault.
      
3. All of these offences were inflicted on that same victim in one attack. The complainant was the former girlfriend of Rarua. She met Rarua in Tebakor and he lured her to a place where he had arranged for friends of his, the other defendants to rape her. The reason why he had done this was to punish her, because it had been reported to him that she had been drinking with some boys down on the beach and that apparently upset him.
   
4. The first man she found there came up behind her that was John Bule. He held her by the neck and told her to lay down and he was going to have sex with her. He was told by her that she did not want it. He held her neck and her nose and mouth with his other hand, she cried out but no one heard. He pushed her down onto the ground and had sex with her by force. Then he told her that everyone else who was there, all the other defendants, were going to have sex with her.
   
5. The second man then had sex with her. The third man then had sex with her, this time her legs were being held by another man and a knife being put against them. Then a fourth man raped her using a condom on that occasion. Then a fifth man raped her having slapped her beforehand. She was then indecently assaulted by three other men in various ways. This was a cowardly and cruel attack by a gang of young men, picking on one young girl. No less than eight men all raping or indecently assaulting one girl at once.
   
6. I want to read the victim impact statement. It is in Bislama, this is what the girl said:
   

"During long taem blong incident ia taem ol boys ia oli holem tight mi, mi lusum hop wantaem, mi filim mi fraet, mi seksek, mi filim private part blong mi i painful mo mi cry nomo, taem oli stap havem sex wetem mi mo even long taem ia mi no laikem fasin we oli mekem long mi ia. Afta long taem blong incident ia long solwota ol boy ia oli ronwe long mi, mo mi wan nomo mi stap long tudak mo mi wokabaot igo blong washem bodi blong mi long solwota, from bodi blong mi i toti long sperm blong olgeta. Taem ia taem mi draon igo insaed long solwota, be mi filim private part blong mi i painful tumas insaed mo even bel blong mi tu i stap soa, mi bin cry mi seksek mo mi fraet tumas mo mi no save pulum gud win while mi stap wokabaot follem road. Naoia igo, taem mi luk ol boy ia mi feelim mi same tumas. Psychologically mi feelim olsem mbai i save affectem mi long skul mo long future blong mi. Mi talem olsem ia from se samtaem taem mi stap sidaon mi wan mi recallem bak fasin we ol boy ia oli mekem long mi. Mi filim nogud tumas mo even samtaem mi filim skin blong mi i kolkol long hem, mo i causem mi drauma mo mbai mi save kasem wan rabis sick long fasin we oli mekem long mi ia long future. Thats why mi stap fraet long hem naoia".

That is what she feels about what you all did to her.

7. You did not treat her like a human being. This was a very bad case of rape where you caused her pain and humiliation, physical and mental. I wonder what you would think if this was done to your mother or your sister.
   
8. There are several aggravating features. Each of you raped her as part of a gang. Each of you when you raped her knew that she was to be raped by others after you or just been raped by others because you saw her raped by your friends and then raped her or you raped her and then saw, knowing that your friends were going to come after you.
   
9. There is also the use of force, by Bule initially and then a knife was held to her leg. Also this was done not just for sexual gratification but to hurt her and humiliate her deliberately. In doing this you are all cowards and you should stand in shame for this, you should stand here in shame.
   
10. The excuses that some of you gave that you were pressured to do it by Rarua, or you were afraid of being thought weak if you did not join in, those excuses are pathetic. They just show even more how weak you are. Those of you who say now you did not want to do it were too weak, you did not have the courage to say "No" in front of your friends. Some of you say now that you have remorse but there has been little sign of that that I have seen. Usually guilty pleas are a sign that maybe you are sorry. In this case the guilty pleas were entered at the last moment, on the morning the trial was to start, after you pleaded not guilty and then after you tried to change those pleas. So I do not believe that any of you are very sorry at all except maybe you are sorry for yourselves.
    
11. A lot of you have talked about how you are willing to do a custom ceremony for reconciliation. I do not see how that fits with saying that you are not guilty after you have said you are guilty. One man’s family has carried out a custom ceremony and they did it within a few days of the incident, that truly shows some remorse and wish to say sorry.
    
12. I wanted to speak about each of you individually. First of all I have heard everything Mr. Toa has said about you, your educational wishes and achievements and your sporting wishes and achievements. However, those things can not count very much. A person facing sentence for rape does not get a lesser sentence because he is at school or has got educational prospects whereas someone else might be unemployed.
    
13. Wilson Rarua, your part in this was a very nasty part, setting it up. You show no remorse at all. You told the Probation Officer that you felt no remorse for the victim and she deserved what she got. If that is your thinking, that you have got some sort of right to arrange a rape, a multiple rape, of a girlfriend of yours because she has been drinking at the beach with boys, you need to look at your way of thinking very hard, because it is very wrong. I consider that you are responsible in part for every one of these rapes, even though you did not actually carry them out yourself. I consider that your blameworthiness in this incident is at the very top.
    
14. John Bule you are twenty years old, same as Wilson Rarua. You were the first person who grabbed the victim, put her on the ground and raped her. In my view you were a ringleader in what happened. You led the pack and you are equally blameworthy with Rarua.
    
15. Maxime Lewawa, Jimmy Jonas and Berry Pakoa you all raped the victim one after the other. Again as with everyone I have to keep in mind what I have been told about your personal circumstances and what I read in the pre-sentence report about those, but I consider you three are facing serious penalties. The three of you as between each other, apart from one matter which I will mention in a moment, are about equally blameworthy and your blameworthiness is a bit less than that of Bule and Rarua. Kabea I consider has similar blameworthiness as well but there are different factors which I will mention in relation to Messers. Kabea and Pakoa.
    
16. The next step down is James Kelly and Philip Avock who have been convicted of indecent assault for rubbing their penis on the victim’s vagina in an unsuccessful attempt to have sex. These are also serious offences, a bit lesser than those who actually achieved the rape.
    
17. Terry Sam is the least blameworthy, he committed indecent assault by touching the victim’s vagina.
    
18. I want to read to you and to everyone in Court the case which sets the guidelines for the Courts in sentencing for rape. It is a case called PP v. Scott and Tula in which the Court of Appeal upheld what the Chief Justice said in an earlier case called PP v. Ali August. What the Chief Justice said is this "the offence of rape is always a most serious crime. Other than in wholly exceptional circumstances rape calls for an immediate custodial sentence. 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 but by no means least to protect women. The length of the sentence will depend on the circumstances of the case. For rape committed by an adult without an aggravating or mitigating feature, a figure of five years should be taken as a starting point in a contested case. Where rape is committed by two or more men acting together, or by a man who has broken into or otherwise gained access to a place where the victim is living or by a person who is in a position of responsibility towards the victim or by a person who abducts the victim and holds her captive, the starting point should be eight years. At the top of the scale comes the defendant who has committed the offence of rape on a number of different women or girls. He represents more than ordinary danger and a sentence of 15 years or more that may be appropriate". And the Chief Justice said that sometimes a life sentence can be appropriate because rape carries a maximum penalty of life imprisonment. The Chief Justice said the offence of rape should be treated as aggravated in any event by any of the following factors:
    
    1. Where violence is use over and above the force necessary to commit the rape
    2. Where a weapon is used to frighten or harm the victim.
    3. Where the rape is repeated
    4. When the rape has been carefully planed
    5. Where the defendant has previous convictions for rape or other serious sexual offences
    6. Where the victim is subject to further sexual indignities or perversions
    7. Where the victim is either very old or young
    8. Where the effect upon the victim physical or mental, especially serious
       

The Chief Justice said where any one or more of these aggravating features are present the sentence should be substantially higher than the figure he suggested as the starting point.

19. In this case nearly everyone of those aggravating features is present in whole or in part. In this case there was more violence used than just that involved in sexual intercourse without consent. This girl’s neck was grabbed and mouth and nose held and she suffered pain in that way. In this case a weapon was used to frighten her, a knife. In this case the rape was repeated, in fact it was not two or more men acting together, it was eight men acting together.
    
20. The rape was planned, maybe not very carefully but it was planned beforehand. As well as the actual completed rapes she was caused other indecencies for which the defendants Avock, Kelly and Sam are charged. She was only 17 years old, just starting her adult life, or about to start it. And I have no doubt that the mental effects of being tricked and raped by 8 men at the planning of the person she thought of as her boyfriend will have serious mental effects on her for a very long time.
    
21. And if each defendant could stand when I say their name:
    
    • - Wilson Rarua. In my view the starting point for you is 11 years. I am reducing that by 3 years for the fact of your plea of guilty. It is not the full one third that is usually given for a plea of guilty, because this plea of guilty did not indicate any remorse at all. It did however save the victim from having to give evidence. The 3 year reduction also takes into account as does all the reductions I make of the problem that the Court of Appeal struck in the case of Whitford about the time for being able to apply for parole. You will be sentenced to 8 years imprisonment less time served. You may sit down now. I will announce what the actual figure is after the deduction of time served at the very end.
      
    • - John Bule, you have the same starting point of 11 years and I make the same reduction for pleading guilty and to cover the parole problem and you are sentenced to 8 years imprisonment less time served to come off that.
      
    • - Maxime Lewawa, in my view you have got a starting point of 10 years and again I am going to take 3 years off for your guilty plea and the other factors I have mentioned and you will be imprisoned for 7 years less time served.
      
    • - Jimmy Jonas, your position as I said is the same as Maxime Lewawa. There will be a starting point of 10 years, a deduction of 3 years and you will be sentenced to imprisonment for 7 years less time served.
      
    • - Berry Pakoa, you also are similar. It is the same offence as Lewawa and Jonas, and it should start at 10 years. In your case I make a 3 year reduction to 7 years but then I make an extra 1 year reduction because of your young age. You are sentenced to 6 years imprisonment, less time served.
      
    • - Newa Kabea, again I think that your blameworthiness is the same as Lewawa, Jonas and Pakoa and there should be a starting point of 10 years which I reduce by 3 years to 7 years, in your case though I make a further 6 months reduction for the reconciliation ceremony which was carried out by you and your family straight after this happened. I accept that that was a real expression of sorrow and the law says it is to be taken into account and it is. You will be sentenced to 6 years and 6 months imprisonment less time served.
      
    • - James Kelly, your offence of indecent assault was close to attempted rape and probably could have been charged as attempted rape. I think it has a 7 years starting point. I reduce that by 2 years for your plea of guilty and in your case a further 1 year for your young age, because you are young. You are sentenced to 4 years imprisonment less time served.
      
    • - Philip Avock, your case I see as the same as James Kelly, that is a starting point of 7 years, 2 year reduction for your plea of guilty and another 1 year for your young age. And you are sentenced to 4 year imprisonment less time served.
      
    • - Terry Sam, your case is the least of them, but it is still a serious thing to have touched this girl’s private part in a situation where you were amongst the gang most of whom raped her. In your case the sentence starting point is 2 years 9 months and I take off 9 months for the guilty plea and sentence you to 2 years imprisonment less time served.
      

22. Now I am going to give the exact sentences taking into account the time served:

- Wilson Rarua, your case, the sentence was 8 years, less time served of 3 months, leaves an effective sentence of 7 years 9 months starting today.

- John Bule, your sentence of 8 years, from that must be deducted 7 months 20 days that you have been in custody leaving a final sentence starting today of 7 years 4 months and 10 days.

- Maxime Lewawa, your sentence of 7 years, from that must be deducted 7 months and 20 days which you have served and you are sentenced to start today, 6 years 4 months and 10 days.

- Jimmy Jonas, your sentence of 7 years, again from that must be deducted 7 months and 20 days, leaving a sentence of 6 years 4 months and 10 days.

- Berry Pakoa, your sentence of 6 years, there must be 3 months deducted for time served, meaning a sentence of 5 years and 9 months imprisonment starting today.

- Newa Kabea, from your sentence of 6 years and 6 months imprisonment, there must be 3 months deducted for time served and your sentence is 6 years and 3 months starting today.

- James Kelly, from your sentence of 4 years, there must be 5 months and 4 days deducted leaving 3 years 6 months and 26 days from today.

- Philip Avock your sentence of 4 years imprisonment, there must be 4 months and 24 days deducted leaving a sentence of 3 years 7 months and 6 days.

- Terry Sam, from your sentence of 2 years, there must be 7 months and 20 days deducted, your sentence starting today is 1 year 4 months and 10 days.

23. You all have 14 days to appeal these sentences if you do not like them. You all may stand down.
    

DATED at Port-Vila this 2nd day of May, 2008

BY THE COURT

C.N. TUOHY
Judge