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Public Prosecutor v Alfred [2008] VUSC 35; Criminal Case 23 of 2008 (18 April 2008)

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

CRIMINAL CASE No.23 OF 2008

PUBLIC PROSECUTOR

-v-

ALICK ALFRED

Coram: Chief Justice Vincent Lunabek

Counsel: Ms Viviane Laumae for the Public Prosecutor
Mr Tom Loughman for the Defendant

SENTENCE

This is the sentence of the Defendant, Alick Alfred. Mr Alfred, you are charged and you pleaded guilty to the offence of Sexual Intercourse Without Consent, contrary to Section 91 of the Penal Code Act [CAP.135]. The complainant is a woman. For ease of reference, the complainant is to be referred to as Ms "V".

The facts are not in dispute and are accepted as alleged by the prosecution. They are set out as follows:

Background

Mr Alick Alfred, you are from Motalava. You work at Iririki Resort. You and your girl-friend live with the complainant and her boy-friend at Simbolo area in the same house.

Ms V. lives in a de facto relationship with Mr Serge Vohor and they have two (2) little girls. She works at Shooters as a waitress. She and her de facto husband are friends of yours.

Incident

On or about 24th December, 2007, in the evening, the complainant’s boy-friend, Serge Vohor, his brother, Mr Philip, and Mr Alick’s girl-friend, Ms Nerry and Ms V. were at home (Simbolo) drinking a bottle of Johnny Walker. Mr Alick was at work at that time.

At about 12 mid-night, Mr Alick arrived home with a bottle of hot stuff. It was white like Vodka. They all got drunk after consuming both bottles of alcohol. They then decided to go out clubbing at shooters that night, unfortunately, Ms V. and her boy-friend, Mr Serge were not able to go out because Serge fell asleep. Ms V. decided to stay home instead with her boy-friend. A curtain was hanging on their door way into their room to give them privacy. It is easy for anyone to enter the room at anytime. Ms V. and Mr Serge fell asleep in their room. They did not know what was happening that night because they were really drunk.

At about 4.00AM the next day, 25th December, 2007, Ms V. turned in her sleep and felt that she was fully naked. She realized that she had her green top on and was covered with a white towel. Ms V. stated in her statement that that night she remembered she did not cover her with any cloth. The night she wore a white tied short trousers with a button and zipper on it.

Ms V. stated that she was over drunk and did not hear nor feel Mr Alick undressing her that night.

She did not tell Mr Serge about what had happened to her that morning.

On or about 12th February, 2008, at about half past twelve (mid-day) she was doing her laundry when you came to the tap to brush your teeth. Your then went to the bathroom to have his bath. After bath you came out the bathroom and came to the tap where Ms V. was washing and stand there for a while. You then called by her name "......!" She responded, "Ah!" with her back towards you. You then said: yu think about we yumi drink long number 24th December ia?" She responded "yes". You then asked her that at that time was she drunk and she said, "yes I was drunk but I controlled myself. Except that when I go to sleep I did not hear anything". She asked you why you were asking her that question. You then ask her that when she woke up did anything happen to her. Ms V. responded that yes, when she woke upon she discovered that she was full naked and she was covered with a white towel.

You admitted that "mi ia. Mi ia mi karemaot ol clothes blong yu after mi mekem samting ia finis mi wantem putum bak ol clothes blong yu be mi fraet long boy-friend blong yu bae I wake up." You then told Ms V. that you covered her with the white towel instead. She told you that she did not know nor hear anything because she slept in drunkenness. She also stated that she did not know what you did to her.

You then told her that, "hemia blong yumi tu nomo, yu no talem olbaot"! you further stated that, "Mbe I gat sam funny I stap yet bae mi jas storian long hem afta."

Ms V. told her boyfriend, Mr Serge, about what you had done to her. He then asked her if she agreed to what you had done to her, but she said she did not agree.

Ms V. then reported the matter to the police 13th February, 2008.

In your statement to the Police dated 14th February 2008, you admitted to the police that you had sex with Ms V. that night.

The prosecution submits and relies on the case of PP v. Ali August, Supreme Court Criminal Case No. of 2000. That judgment has been endorsed by the Court of Appeal in Criminal Appeal Case No. of 2002 in Maslea Scott and Jeremiah Tula. The Court of Appeal judgment is the guideline judgment in sexual intercourse without consent.

In their submissions, the prosecution list a certain numbers of factors as aggravating features. During the prosecution submissions, I indicated to the prosecuting counsel that they are not aggravating features.

The defence counsel concedes that the judgment of the Court of Appeal in Scott and Tula is the guideline judgment on sexual intercourse without consent offending. Your counsel submits on your behalf that sexual intercourse without consent is a very serious offence with a maximum penalty of life imprisonment. You are 27 years of age. You are from the Island of Motolava, Banks group. You have reachd year 11 Secondary level. You obtained a Certificate from a Vocation Training School coupled with some overseas training in the area of hospitality. You joined on P & O Cruisers as a Waiter on Pacific Cruise ship for 2 months.

Before you were remanded in custody you worked as a waiter at Iririki Resort since April 2006 until you were arrested and remanded in custody. You were remanded in custody since 14 February 2008 till today 18 April 2008. You live in a de facto relationship. Your partner was pregnant and gave birth to a baby boy in your absence.

You had performed a custom ceremony to the victim with the giving of 1 mat, 5kg rice, calico, shampoos, 2 soaps and sweet, and cash – 1,000VT.

Your counsel told the Court to take the following mitigating matters into account in your sentencing:

- guilty plea
- Cooperation with police
- Custom reconciliation
- First time offender
- No prior conviction; and
- The fact you were remanded since 14 February 2008 – 18 April 2008.

In sentencing you, I apply the guideline judgment of the Court of Appeal in Scott and Tula of 2002. I bear in mind that there is no aggravation in your offending. There is no violence use above and necessary to commit the offence. There is no weapon use. The sexual offending is not a planned offending. It is an opportunistic situation.

Sexual intercourse without consent is defined under Section 90 of the Penal Code Act (as amended). Section 91 of the Penal Code says no person to have sexual intercourse with any person.
Maximum penalty: life imprisonment.

Law

"SEXUAL INTERCOURSE WITHOUT CONSENT

90. Any person who has sexual intercourse with another person:

(a) without that person’s consent; or

(b) with that person’s consent if the consent is obtained:

(i) by force; or

(ii) by means of threats of intimidation of any kind; or

(iii) by fear of bodily harm; or

(iv) by means of false representations as to the nature of the act; or

(v) in the case of a married person, by impersonating that person’s husband or wife; or

(vi) by the effects of alcohol or drugs; or

(vii) because of the physical or mental incapacity of that person.

commits the offence of sexual intercourse without consent.

PUNISHMENT OF SEXUAL INTERCOURSE WITHOUT CONSENT

91. No person shall commit sexual intercourse without consent

Penalty: Imprisonment for life."

The following are what the Courts of the Republic have said and reiterated again and again when they deal with a person or more than a person who commits a crime of rape or sexual intercourse without consent the consent of the complainant. The guideline judgment is in PP v. Maslea Scott and Jeremiah Tula, Criminal Appeal Case No.02 of 2002.

"The offence of rape is always a most serious crime. Other than in wholly exceptional circumstance, rape calls for an immediate custodial sentence. This 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 but by no means least, to protect women. The length of the sentence will depend on the circumstances. That is a trite observation, but these in cases of rape vary widely from case to case.

For rape committed by an adult without an aggravating or mitigating feature, a figure of five years should be taken as the starting point in a contested case. Where a 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 upon a number of different women or girls. He represents a more than ordinary danger and a sentence of fifteen years or more may be appropriate.

Where the defendant’s behaviour has manifested perverted or psychopathic tendencies or gross personality disorder, and where he is likely, if at large, to remain a danger to woman for an indefinite time, a life sentence will not be appropriate.

The offence of rape should in any event be treated as aggravated by any of the following factors:

(1) Violence is used over and above the force necessary to commit rape;

(2) A weapon is used to frighten or wound the victim;

(3) The rape is repeated;

(4) The rape has been carefully planned;

(5) The defendant has previous convictions for rape or other serious offences of a violent or sexual kind;

(6) The victim is subject to further sexual indignities or perversions;

(7) The victim is either very old or young;

(8) The effect upon the victim, whether physical or mental, is of special seriousness.

Where any one or more of these aggravating features are present, the sentence should be substantially higher than the figure suggested as the starting point.

If the defendant pleads guilty, the sentence should be reduced by 1/3 depending on the circumstances, including the likelihood of a finding of not guilty had the matter been contested.

The fact that the victim may be considered to have herself in danger by acting imprudently (as for instance by accepting a lift in a car from a stranger) is not a mitigating factor, and the victim’s previous sexual experience is equally irrelevant. But if the victim has behaved in a manner which was calculated to lead the defendant to believe that she would consent to have sexual intercourse, then there should be some mitigation of the sentence. Previous good character is of only minor relevance.

That reasoning is again apparent in the further Judgement of the Chief Justice in Public Prosecutor v. Mark Katipa and Peter Roy delivered on 17th September 2002 where the same principles were repeated but the Judge noted that the proper starting point in that case was 8 years imprisonment with adjustments for aggravating and mitigating factors as the two (2) accused pleaded not guilty.

There can be no room for any deviations from these fundamental and essential principles. The rights of women must be recognised maintained and upheld.

Even giving them a substantial allowance because these two men eventually pleaded guilty, in our judgement a sentence of five or six years would not have been interfered with by this Court on appeal. That is the level of deterrence and condemnation which must be imposed on those who behave in this way.

In those previous cases mentioned and in the similar decision of Justice Coventry in Public Prosecutor v. Ivon Feriam Criminal Case No. 32 of 2001 the Courts have consistently noted that there can be no issue of suspension in sexual abuse cases."

I apply the guideline judgment of the Court of Appeal in Maslea Scott and Tula of 2002 in this case.

The starting point is 5 years imprisonment. I must take into account your guilty plea, the fact that you are a first time offender, the fact that you performed a custom ceremony.

After a proper account, I sentence you to 3 years imprisonment. I bear in mind that I must deduct the period you have already spent in custody before you are sentenced today – I combine that exercise with your right of Parole to ensure that you do not loose it. I give you an allowance of 5 months. I sentence you to 2 years and 5 months imprisonment with immediate effect.

14 days to appeal.

DATED at Port-Vila this 18th day of April 2008

BY THE COURT

Vincent LUNABEK
Chief Justice