Obed v Public Prosecutor [2004] VUCA 24; Criminal Appeal Case 07 of 2004 (4 November 2004)

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

Criminal Appeal Case No. 07 of 2004

BETWEEN:

ETHRIC OBED
Appellant

AND:

PUBLIC PROSECUTOR
Respondent

Coram: Chief Justice Vincent Lunabek
Hon. Justice Robertson
Hon. Justice Von Doussa
Hon. Justice Fatiaki
Hon. Justice Treston
Hon. Justice Bulu

Counsels: Mr. P. Bartel for the appellant
Mr. Mirou for the respondent

Hearing Date: 01 November 2004
Judgment Date: 04 November 2004

JUDGMENT

On the 3^rd of September 2004, the appellant was convicted by the Supreme Court after he pleaded guilty to a charge of Rape contrary to Section 91 of the Penal Code [Cap. 135] and sentenced to 30 years imprisonment. The trial judge also ordered that the appellant not to be released on licence and/or pardoned until he had served at least two thirds of the term imposed.

The appellant appeals against his sentence on the sole ground that it is 'manifestly excessive' in the face of the charge for which the appellant who was unrepresented at his trial had pleaded guilty and been convicted.

The prosecution's case was that on the morning of 16^th August 2004 the complainant who was a Peace-Corp volunteer teacher at Vaiduhu Rural Training Centre at Malo went out jogging with her dog. On the way she was confronted by the appellant who had his head and face covered. The appellant was also armed with a piece of wood, which he used to scare away the complainant's dog. The complainant attempted to run away but was caught by the appellant and was dragged a short distance off the track where she was throttled by the appellant and, despite her pleas for him to stop, the appellant forcibly raped her. The complainant sought assistance at a nearby house and the matter was reported to the police.

Two (2) days later on 18^th August 2004 the appellant was arrested and interviewed by the police and he signed a voluntary statement admitting the offence.

At his trial approximately a fortnight later, the appellant twice refused the trial judge's offer for him to speak to the Public Solicitor before entering his plea. The appellant was accordingly arraigned without legal representation or advice. He entered a plea of 'guilty' to the charge.

We mean no criticism of the trial judge when we express our concern that this appellant who was a 20 year old student attending the Vaiduhu Training Centre at the time and who was not from Malo Island, might have felt intimidated by the circumstances in which he found himself at his arraignment. He was unrepresented, had been charged with raping his teacher, and had been arrested at his home and handed over to the police by the local area chief and villagers.

Given the circumstances outlined above and the seriousness of the offence charged, it was particularly important that every effort should have been made to ensure that the appellant's fundamental right to the protection of the law was observed and that he was 'afforded a lawyer' to enable him to take legal advice so as to ensure that his plea of 'guilty' was both informed and unequivocal. This is more so where a long term of imprisonment appears likely.

Indeed as a matter of prudent and fair practice we would recommend that a court in dealing with an unrepresented accused on a serious charge should obtain and record the accused's admission(s) to each and every ingredient of the offence(s) charged before entering a conviction based on a plea.

Be that as it may nothing has been urged before us which might cause us to doubt the appellant's plea and conviction which is accordingly upheld. We turn to consider the substantive appeal, which is against the sentence imposed by the trial judge.

In his sentencing remarks the trial judge identified four items or matters of aggravation as follows:

"(a) The complainant is an expatriate volunteer with the US Peace Corps.

(b) She is the teacher of the accused.

(c) She is a married woman. The distress caused to her and her husband as a result of what happened could be enormous and disastrous to their relationship.

(d) She was threatened by the accused with a piece of wood, pulled by her hair and dragged some 5 - 6 metres from the main road into the bushes."

We do not wish to minimize or diminish in any way the seriousness of the offence with which the appellant was charged or the undoubted personal distress and trauma that would have been experienced by the complainant and her husband who we understand left Vanuatu soon after the incident, but we entertain some doubt about items (a), (b) and (c) above being considered by the trial judge as "factors that add to the seriousness" of the appellant's offending.

The rape of any woman is a serious invasion of her person and being whatever her country of origin, marital status, situation in life, occupation or relationship with the offender.

The courts have a duty to protect the public in sentencing offenders. But in the sentencing of young offenders such as the appellant in this case, the Court has a duty to balance society's desire for deterrence and retribution with that of rehabilitation and, in doing so, to ensure that the length of the sentence imposed on a young offender is not of a duration that would crush any hope of rehabilitation consistent with the protection of society.

In the present case the trial judge imposed an effective sentence of 30 years imprisonment presumably after considering aggravating and mitigating factors. The starting point in the judge's sentencing exercise would have been considerably higher than the effective term and could well have exceeded 40 years which is twice the appellant's age.

Nothing in this case or in the cases that this Court has considered including Public Prosecutor v Simeon Frank and others [2004] VUSC 63; [2004] VUSC 67; Criminal Case No. 04 of 2004 and Public Prosecutor v Saki Sam Georges [2004] VUSC 68; Criminal Case No. 18 of 2004, would justify such a starting figure for an offence of rape nor in our experience has a sentence remotely approaching 30 years ever been imposed in this country whether for rape or any other offence and involving a young first offender such as the appellant.

We have no hesitation in allowing the appeal against the sentence imposed which is manifestly excessive and unprecedented. The sentence must be and is accordingly quashed. What then is the appropriate sentence to be imposed in this case?

The learned Public Prosecutor, quite properly did not seek to support the appellant's sentence and has drawn our attention to a judgment of this Court in Public Prosecutor v Maslea Scott and Jeremiah Tula [2002] VUCA 29; Criminal Appeal Case No. 2 of 2002 where we referred to and endorsed the judgment of the learned Chief Justice in Public Prosecutor v Ali August [2000] VUSC 72; Criminal Case No. 14 of 2000 which sets out the following relevant sentencing guideline:

"For rape committed by an adult without any aggravating or mitigating features, 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 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."

Later in his judgment the learned Chief Justice identifies the following relevant aggravating 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 has been carefully planned; and

(4) The effect upon the victim, whatever physical or mental is of special seriousness."

Finally, the learned Chief Justice recognized the significant mitigating effect of a plea of guilty in a case of sexual assault when he said:

"If the defendant pleads guilty, the sentence should be reduced by 1/3 (one third) depending on the circumstances, including the possibility of a finding of not guilty had the matter been contested"

Adopting the above guidelines in the present case but without necessarily confirming the starting point of 5 years in a contested case, we are satisfied that the aggravating features in this case including (1) the fact that the appellant had lain in wait for the complainant; (2) was armed with a piece of wood; (3) had attempted to conceal his identity; and (4) had persisted in the rape in the face of the complainant's pleas, should be marked with a sentence of 10 years imprisonment before mitigation.

This figure would in turn be significantly reduced on the appellant's guilty plea.

In the present case the appellant admitted the offence within 48 hours of its commission and later repeated it before the trial judge. Such an early admission in a case of sexual assault is a strong mitigating factor in favour of the appellant. It demonstrates his early remorse and, most importantly, saves the complainant the embarrassment and the additional trauma of having to relive her ordeal as a witness in Court and being subjected to searching cross-examination.

We consider in all the circumstances that the appellant should receive a substantial reduction for his 'guilty' plea which we fix at 3 years.

In the result the appellant is hereby sentenced afresh to a term of 7 years imprisonment with effect from the date of his imprisonment.

For the sake of completeness and to avoid any doubt in the matter, we record our firm view that, however desirable it might be no power exists in statute or at common law that empowers a court in imposing a sentence of imprisonment to order that a minimum term be served before a prisoner becomes eligible for release by the relevant authorities.

Dated at Port Vila, this 04^th day of November 2004

BY THE COURT

Chief Justice Lunabek
Hon. Justice von Doussa
Hon. Justice Fatiaki
Hon. Justice Robertson
Hon. Justice Treston
Hon. Justice Bulu