Public Prosecutor v Atis Willie [2004] VUCA 4; Criminal Appeal Case 02 of 2004 (9 June 2004)

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

CRIMINAL APPEAL CASE No. 02 of 2004

BETWEEN:

PUBLIC PROSECUTOR
Appellant

AND:

ATIS WILLIE
Respondent

Coram: Chief Justice Vincent Lunabek
Justice Bruce Robertson
Justice John von Doussa
Justice Daniel Fatiaki
Justice Oliver Saksak
Justice Patrick Treston

Counsel: Mr. Nicholas Mirou, the Public Prosecutor
Mr. Peter Bartels for Mr. Willie

Date of hearing: 1st & 4th June 2004
Date of judgment: 9th June 2004

JUDGMENT

This is an appeal by the Public Prosecutor pursuant to the provisions of Section 200 of the Criminal Procedure Code [CAP. 136] in which it is alleged that a total sentence of 12 months imposed in the Supreme Court sitting in Port-Vila on 11 December 2003 was manifestly inadequate. Mr. Atis faced two counts of Unlawful Intercourse with a girl under care and protection contrary to Section 96(1)(a) of the Penal Code Act [CAP. 135].

There is also an application for leave to appeal out of time because the application was not made within the 14 days required by Section 201(6) of the Criminal Procedure Code.

As we discuss later in this judgment this case raises fundamental questions about the operation of the overall criminal justice system within the Republic of Vanuatu.

The Constitution of this sovereign democratic State is rooted in the principle of the separation of powers with clear and specific duties and responsibilities being vested in the Parliament, National Council of Chiefs, the Head of State, the Executive and the Judiciary. Under Chapter 8 the administration of justice is vested in the judiciary. Judges are subject only to the Constitution and the law, and are charged with resolving proceedings according to law.

In the administration of Justice the Courts are therefore bound by the fundamental rights enumerated in Article 5 and the Courts are to be available to ensure their enforcement. Although the fundamental duties enumerated in Article 7 are not justiciable, encouragement with compliance is mandated also.

There is a preliminary issue about the lateness of this appeal. We accept the strength of the submission that a person who has been prosecuted is entitled to assume that after a period of 14 days following the sentence having been imposed, the issues relating to the criminality have come to an end. However, that is subject to an application for leave being granted where the justice of the matter so requires. We return to that subject later.

The general approach of the Court in respect of sexual offending both within the family and generally are fully discussed in Public Prosecutor v. Gratien Bae, [2003] VUCA 14; Criminal Appeal Case No. 3 of 2003 which is consistent with the earlier decision in Public Prosecutor v. Kevin Gideon, [2002] VUCA 7; Criminal Appeal Case No. 3 of 2001 and which in turn followed what is said by this Court in Peter Talivo v. Public Prosecutor, [1996] VUCA 2; Criminal Appeal Case No. 2 of 1996.

There are many other cases in the Supreme Court but it is unhelpful to refer to a multiple of previous discussions when the Court of Appeal has recently and consistently made clear the applicable regime and the standards which are to apply in cases such as this.

It is a fundamental aspect of the rule of law that like cases are treated and responded to in a consistent and uniform way. There should be transparency in process and consistency in the treatment of all who have offended against the criminal law. Courts are required to articulate the factors which have been weighed and what issues have been considered including mitigating and aggravating factors in reaching a decision. Appeals by the Public Prosecutor are permitted specifically to ensure that consistent and uniform standards are maintained throughout the criminal justice system so that it can be seen to have integrity and thus enjoy the confidence of the entire community.

There are however two areas in which other arms of Government can have an impact on the criminal justice system. Article 38 of the Constitution provides:

“The President of the Republic may pardon, commute or reduce a sentence imposed on a person convicted of an offence. Parliament may provide for a committee to advise the President in the exercise of this function.”

Ten years ago, Sir Harry Gibbs sitting in the Supreme Court when delivering reasons for judgment in Government of the Republic of Vanuatu v. the President of the Republic of Vanuatu, [1994] VUSC 2; Civil Case No. 124 of 1994, undertook a careful and extensive consideration of this power and its operation. He noted in the circumstances of that case that although the President had requested that a committee be appointed by Parliament to advise him in the exercise of his power to pardon or reduce or commute sentences, Parliament had made no response. We are advised a decade later that the position remains the same although the constitutional instrument recording the pardon of Peter Swanson in December 1998 asserts the input of a Committee.

It is regrettable that Parliament has not responded in a permanent way to meeting this responsibility in the way contemplated by the Constitution, for the power enshrined in Article 38 demands a solemn and sensitive approach.

Within any country which is committed to the rule of law, notwithstanding the general terms of the Article, this is not a power which can be exercised except in a way which is consistent with the entire constitutional framework. It is not a power which is beyond the purview of the Court to review and assess its exercise for legality.

The circumstances which will justify an exercise are myriad. It must always be used in a principled, transparent and consistent way. The advantage of advice from a Committee provided by Parliament would be enormous. If Parliament does not respond itself, there is nothing to stop the President appointing advisors with regard to it. This will assist in ensuring a clear and transparent record of the issues which have weighed with the President in any exercise of the power which is undertaken.

In the absence of such an approach there is a danger that this important residual power will, instead of ensuring that no injustice can arise, become a problem itself. The historical antecedents of such a prerogative of mercy, as well as comparative provisions in other countries, clearly demonstrate that it is the ultimate backstop. It cannot be a mechanism of general application in the administration of criminal justice. Unless it is properly confined the potential for it to distort the consistent and universal application of the rule of law is substantial.

The second circumstance of an input into criminal justice outside the Judiciary is the power vested in the Minister responsible for Prisons under Section 30 of the Prison (Administration) Act [CAP. 20].

This again is expressed in bald and general discretionary terms but as with every exercise of statutory power, it can only be used in a way which is rational and reasonable in all the circumstances. This means that a Minister who is exercising the power must have regard to all relevant circumstances, must ignore matters that are irrelevant to the proper administration of justice and always exercise it with a view to the maintenance of a society permeated by integrity, equity and equal treatment for all in accordance with the law.

In many countries the statutory equivalent to the release on license is in fact provided for by Parliament in detailed legislative provisions. A statute will indicate the proportion of a sentence which must in any event be served and often a period in respect of which release will always occur. These maximum and minimum periods will be subject only to extraordinary arrangements to deal with humanitarian, health or other exceptional circumstances. Those apart, the statute in its detailed provisions will ensure equality of treatment for all those convicted and sentenced in the Courts. The reason why Parliament will legislate in that way is to ensure that like cases invariably are treated in a like manner and to ensure that there is not a danger of the process being diverted by matters which are not relevant and which have the risk of distorting the rule of law and the delivery of equal justice for all.

We have referred to the powers which are vested in other branches of Government within the context of this appeal because of their potential influence on the administration of justice. The Court, after guilt has been established in a transparent process and conviction entered, imposes either at first instance or on appeal, a particular sentence in accordance with the law and having regard to both the offence and the offender. Great damage is done to the administration of justice if after sentence has been passed there is executive intervention (especially in a way where it is not immediately apparent what principle has been applied) which radically and randomly alters the outcome. This can create a serious distortion of consistency which is essential in the overall criminal justice arena.

In the course of hearing this appeal we have obtained information about the manner in which the powers under Article 38 of the Constitution and under Section 30 of the Prison (Administration) Act have been exercised in recent times. From the information provided to us can be summarized as follows:

On 2^nd August 2002, 23 people were released on license. On 16^th December 2002, another 24 and on 22^nd March 2004 a further 19. In respect of those released on 22^nd March 2004, notwithstanding the requirements of Section 13 of the Interpretation Act [CAP. 132] there has never been a publication in the Gazette of the Statutory Orders authorizing those remissions.

In respect of many of these 66 cases the prisoners were released after having served one third to a half of the sentence originally imposed.

However, some particular matters stand out.

(i) A man who had been sentenced to 6 years imprisonment for rape was released after 3 months and 10 days.

(ii) Another man sentenced to 6 and a half years for rape was released after 3 months and 12 days. Apparently another person sentenced at the same time for the same offence remains in custody.

(iii) A person who was sentenced for rape to 8 years imprisonment was released after 18 months and 5 days.

(iv) In respect of a 5 years sentence for rape the prisoner was released after 10 months and 7 days.

(v) Three men were dealt with together by the Court for Unlawful Sexual Intercourse. One was sentenced to 15 months imprisonment, another 18 months imprisonment and the third thirty months imprisonment. The different lengths of their sentences related to their various individual circumstances. All three were released having served 6 months and 3 days.

(vi) A person sentenced to 3 years imprisonment for accessory to rape was released after 1 month and 22 days.

(vii) A man sentenced to 3 years imprisonment for Indecent Assault was released after 4 months.

(viii) Two people who were each sentenced to 3 months imprisonment for making false declarations were released after 11 days.

(ix) A group of 15 people were sentenced for arson to various terms of imprisonment between 12 months and 6 months. Everyone of them was released having served 5 months and 24 days in prison.

There is an indication that in some of the releases on license the application for release were made and recommended to the Minister by the Commissioner of Police (who on a straight reading of the Act does not have any role in the exercise) while in others a request and recommendation emanated from the Director of a Prison. All of these releases are expressed as being subject to conditions but as we discuss below these are probably invalid and unenforceable.

There is nothing which suggests that individual prisoners can initiate action themselves. Nor can we be confident that the periodic review of every sentenced prisoner required by Section 31 of the Prison (Administration) Act [CAP. 20] is occurring.

It does not appear that in any case advice was sought from the prosecuting authorities, from victims or from others within the community who have a proper and legitimate interest in radical alterations with the length of prison sentences before the decisions were taken.

In addition to these 66 prisoners, on 23^rd February 2004, the power under Article 38 of the Constitution was exercised to reduce by two third the sentences of 19 other prisoners. No conditions of any sort attached to those releases so they were absolutely free thereafter.

These cases must be contrasted with what should occur under the statutory regime. Although there are no limits on when the power to release on license may be exercised, the form produced to us which is used in such cases specifically notes that it is to be submitted by the Officer in charge of a Prison as soon as the prisoner has completed HALF of his/her sentence. There is evidence that this is not always adhered to in respect of the operation of Section 31, but using an alternative mechanism to change the time spent in prison to only a THIRD of the sentence imposed, is problematic.

There was also a case of a pardon on 13^th November 2002 in respect of a conviction which had led to a term of imprisonment of 3 years which was granted after only 3 months and 24 days of the sentence had been served.

On the information which we have been able to obtain a disproportionate number of releases have been of prisoners in Port Vila.

Courts will always pay due and proper deference to any proper exercise of any constitutional or statutory power. However the Courts’ prime duty is to ensure the maintenance of legality in all action. That means that in proper cases the Courts can be requested to assess and test the lawfulness of any actions.

While the Court system includes rights of appeal to enable the correction of error and to ensure consistency of approach, what is achieved can be seriously undermined if subsequent activities destroy that integrity of approach. Pardons and releases on license must occur within the total framework of a criminal justice system which is unequivocally rooted in the rule of law. They are not a separate extra-judicial adjunct.

There are trends which emerge from the data available. First, that the Article 38 powers are being used very extensively. Within the constitutional structure one would anticipate the exercise to be restricted to extraordinary and truly unusual case. It is not a mechanism for radically altering the decisions of the Courts in some but not all cases as if it provided another level of appeal without formal process or comprehensive hearings.

Secondly the need for a consistent and transparent approach in any mechanism which would have the effect of reducing the actual times spent in prison is overwhelming. There are many cases in which release part way through a sentence is occurring through a Presidential reduction of sentence. As a result there is no ongoing supervision or control available over those people. The ongoing surveillance which is generally seen as an essential part of early release is totally removed.

A large number of remission cases appear to proceed on the basis that a person is released on conditions. However there is no finite period specified for these conditions so on their face it reads that the person will remain on conditions for the remainder of their life. That cannot be lawful under the guarantees in Article 5 of the Constitution. It would be open to argument that such conditions are consequently unlawful and therefore unenforceable. The result is that such people would be released from prison after serving only a fraction of a sentence without any restraints thereafter. An appropriate way of dealing with this problem would be to limit the time upon which they are under condition or supervision to the full term of the original sentence imposed. It is contrary to the fundamental rights of citizens if by executive action their rights are restricted for a longer period than that which the Court determined was the proper sentence for the criminal offending.

Thirdly, there is no clear evidence that in considering pardon or reduction that everybody who has been sentenced is treated in an identical way. The Courts must always, in determining sentences, consider the details of the offence which has been proved and the circumstances of the offender. Both factors are required to be carefully weighed to ensure that there is similarity of treatment and consistency in the operation of the system. There cannot be one approach for some and a different approach for others within the Courts and, equally, in the exercise of powers that impact on the criminal justice system.

On the data which is currently available it is difficult to be confident that there are not major variations in the treatment of prisoners because of the way in which these two powers are presently being exercised. This has the potential to totally undermine the Court in its duty of delivering justice equally to all citizens as they are duty bound to provide, when there are subsequent mechanisms where the exercise is not grounded in those same fundamental policies.

As this Court noted in Picchi v. Public Prosecutor, [1996] VUCA 9; Criminal Appeal Case No. 4 of 1996, the articulation of reasons is at the heart of any system of justice. It is not sufficient to get a right answer. There must be available for scrutiny and assessment the reasoning by which that answer was reached. The same principle must also be an aspect in these other areas which affect the delivery of justice. What has happened must be transparent. Everything done must clearly demonstrate that account has been taken of all the competing interests which are involved in the exercise. If people are to be released from prison by pardon or reduction in sentence then it is absolutely imperative that those who have the ability to make such changes must have regard to the actual circumstances of the original offences, the reasoning of the Court in reaching its decision and sentence, the impact of the decision on the victims of the crime, questions of public safety and security and the consequences for not only the particular individual but the wider community.

In a Public Prosecutor appeal such as this, there is an overwhelming need to maintain consistency of approach and uniformity of application in the administration of justice. A pardon or reduction of a term of imprisonment has consequences not only for the beneficiary but for the entire justice system. It affects all others who have been convicted and sentenced by due and proper process. A weighing and an assessment of those down stream consequences is therefore of fundamental importance.

Parliament under the constitutional framework has a substantial role in Criminal Justice. It is Parliament which sets the maximum terms of imprisonment which are available in respect of criminal offences. If Parliament is of the view that the Courts are imposing sentences of imprisonment which are too long then Parliament can amend the Penal Code and reduce maximum penalties or give other direction of a general nature as to the sentencing policy which they require for this country. The Courts are bound by Parliament whenever it operates within its constitutional power. What cannot happen is for someone who has a special or residuary position in the criminal justice system, to overtake the position of the Courts and their constitutional responsibility in this difficult and sensitive area. That is justice according to men and not justice according to law.

Courts decide cases. Courts cannot initiate cases before them. But there is a solemn duty on all who have been vested with rights and responsibilities under the Constitution to ensure that there is adherence to the rule of law in the reasonable and rational exercise of any power entrusted to them. If it appears that this is not occurring the Courts can be asked to adjudicate upon that situation. Although the Courts will always respect and uphold the constitutional rights and duties of other parts of our governmental structure, the Courts have the ultimate responsibility of declaring whether a particular action is constitutional and lawful and therefore sustainable.

Against that general backdrop we turn to this application in respect of Mr. Atis Willie where a number of difficulties arise. On the basis of the admitted facts and the summary which was presented to the Court, it is not immediately apparent why this man was not charged with rape where the maximum penalty is life imprisonment but was charged only with sexual intercourse with a girl under care and protection contrary to Section 96(1) of the Penal Code where the maximum penalty is 10 years. Courts cannot substitute a more serious charge than that which is laid by the prosecutorial authorities but it creates problems in maintaining consistency and uniformity of approach when the facts indicate of a more serious crime than that which is charged.

The consequence here is that the offending which the Judge had to deal with in his case was serious within the section charged. Mr. Atis took advantage of this young woman more than once. His behaviour was accompanied by threats and in circumstances where he clearly knew that his attention was not welcome.

A sentencing response to the two specific incidents which occurred within the context of ongoing sexual interference by a term of imprisonment which in its totality was only twelve months was outside the discretion available in terms of the decisions of this Court. The rights of women in this community must be respected. The Courts, in seeking to uphold those rights, must in a uniform way impose sentences which have a potential to deter men who behave wrongly against women and which clearly condemns this type of behaviour.

Mr. Bartels together with the respondent’s wife and their Pastor have all spoken of his contrition and recognition of his wrongdoing which we accept. We are fully aware of the tragic consequence for his family from his offending. Sadly that is the unavoidable position that arises in almost all criminal cases. It does not provide justification for an approach which is not within the available discretion.

As this is an appeal by the Public Prosecutor the Court will always restrict the length of any substituted sentence to the minimum consistent with overall justice. We also need to weigh the fact that the application was made weeks late. Although there are explanations provided as to the pressures within the Public Prosecutor’s Office that is only part of the story because of the consequences of their inaction on the sentenced man himself.

Had this man been sentenced to 3 or 4 years imprisonment for this offending this Court would not have interfered on an appeal by him. We have reached the firm conclusion that the 12 months sentence in this case is wholly inadequate. Accordingly leave to appeal is granted and he is sentenced on each charge to twelve months imprisonment to be served consecutively making a total effective sentence of 2 years imprisonment.

Whether Mr. Atis serves the full sentence or is granted earlier release after serving part of his sentence is a matter for the Executive. However, if early release is to occur, for the reasons given in this judgment, the release to be lawful and in accordance with the principles of the rule of law, must be pursuant to a universal scheme that operates with transparency and integrity, and ensures equality of treatment for all across the whole prison population.

Dated at Port-Vila this 9^th day of June 2004

BY THE COURT

Vincent LUNABEK CJ
J. Bruce ROBERTSON J
John von DOUSSA J
Daniel FATIAKI J
Oliver A. SAKSAK J
Patrick I. TRESTON J