Public Prosecutor v Scott [2002] VUCA 29; CA 02-02 (24 October 2002)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU

APPELLATE JURISDICTION
Criminal Appeal Case No.2 of 2002
BETWEEN:

PUBLIC PROSECUTOR

Appellant
AND:

MASLEA SCOTT
JEREMIAH TULA

Respondent

Coram: The Honourable Chief Justice Vincent Lunabek
The Honourable Justice Bruce Robertson
The Honourable Justice John Von Doussa
The Honourable Justice Daniel Fatiaki
The Honourable Justice Roger Coventry

Counsel: Mr Colin Leo for the Prosecution
Mr Hillary Toa for the Defence

REASONS FOR JUDGMENT

The Public Prosecutor appeals against the sentence of three years imprisonment suspended for two years which was imposed on each of the Respondents in the Supreme Court at Luganville on 30^th January 2002 after they have pleaded guilty on arraignment.

The appeal was on the basis that the sentence was manifestly inadequate and unreasonable in all the circumstances.

The matter was first before the Court of Appeal in April. We indicated that we would not hear the matter in the absence of the two Respondents. It is clear that where there are appeals of this sort it is essential the Respondents are served and appear in the Appeal Court.

There was no dispute about the facts in this case. In the early hours of the morning of 27^th December 2001 (apparently after they had been drinking kava together) the two Respondents went near the victim’s home. Maslea Scott asked her to come out and have sex with him which she had done in the past. She was willing to do so again on this occasion. After the activity had concluded the victim put her clothes back on but Maslea Scott told her to wait as his friend also wanted to have sex.

She immediately said no, and when Maslea Scott went off to summons Jeremiah Tula she tried to run away. Maslea Scott chased her and eventually restrained her by grabbing her bra which broke, Maslea Scott then pulled off all the rest of her clothes and kicked her on the right side so she fell to the ground. Maslea Scott hit her again while on the ground on her right shoulder. He removed the rest of her clothes so she was naked. She was crying when Jeremiah Tula arrived on the scene. He immediately put his fingers between her legs and penetrated her vagina with his fingers. She told him that what he was doing was not right and was still crying. But he insisted that he must penetrate her. The victim was in great pain because of the attack on her by Maslea Scott. However she was eventually forced to climb on to the exposed penis of Tula Jeremiah while he was on the ground. She had asked him specifically not to have sex but he penetrated her and intercourse occurred. She was crying and in fear. When it was over she asked Tula Jeremiah to fetch her clothes which had been taken away by Maslea Scott. They then went to a nearby house where Tula Jeremiah helped dress her bruises he gave her a thousand vatu for her to go to hospital. She reported the matter to the police.

In the Session of this Court in April 2002 we delivered judgment in Criminal appeal No.3 of 2001 (Public Prosecutor v Keven Gideon). We discussed the principles applicable to appeals by the Public Prosecutor.

In that case we said it will only be in the most exceptional of cases that suspension could ever be contemplated in a case of sexual abuse. There is nothing in this case which brings it into that category. Men must learn that they cannot obtain sexual gratification at the expense of the weak and the vulnerable. What occurred is a tragedy for all involved but men who take advantage sexually of women forfeit the right to remain in the community.

However, on any view this was a serious attack by two men on a defenceless young woman. The fact that she chose voluntarily and consensually to have sexual intercourse with Maslea Scott says nothing about whether she would agree to having sex with his friend. The sentencing Judge in our view correctly decided that these two men were equally culpable in their behaviour. It was Tula Jeremiah who had intercourse with her when he knew that she was not consenting. She was crying and told him not to do it and he could not have believed on reasonable grounds that she was consenting.

On the other hand Maslea Scott having had consensual intercourse with her himself had treated her as though she were his property and available to do what he directed so the lustful needs of his friend could be met. The time has long come when all men must know and understand that women have the right to control what they do with their bodies and what sexual activity they involve themselves in. If they cannot or will not recognise that fundamental position then they cannot remain within the community.

A number of decisions were referred to in the Supreme Court including Public Prosecutor v. Ali August of Criminal Case No. 14 of 2000 where the Chief Justice set out the applicable rules. To assist in the understanding of those rules we repeat what he said:

“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 17^th 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.

Regrettably in this case these two men were given false hope in a sentence which was manifestly inadequate and wrong in principle. Only because of the effect of that sentence and an unjustified but perhaps understandable feeling of injustice which the respondents may now feel, we have with a degree of reluctance decided that the sentence of imprisonment should not be increased but the order for suspension could not possibly continue.

We note that the sentencing Judge indicated that for all first offenders an immediate term of imprisonment was automatically ruled out. That is not the law. If people with no previous convictions get a first conviction for a serious matter then they must expect to go to prison and there can be no possible practice which says that everybody is dealt with on a first charge with not more than a suspended sentence.

Although the sentence is still much below that which would otherwise have been justified, we conclude that the appropriate and just course is to allow the appeal and confirm the three (3) years sentence but to quash the order for suspension.

Those are the reasons for the decision which we gave in Court on Monday the 21^st of October.

DATED AT LUGANVILLE, this 24th DAY of OCTOBER, 2002

BY THE COURT
V. LUNABEK CJ.
J. B. ROBERTSON J.
J. von DOUSSA J.
D. FATIAKI J.
R. COVENTRY J.