Sur v Public Prosecutor [2008] VUCA 8; Criminal Appeal Case 04 of 2008 (30 April 2008)

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

CRIMINAL APPEAL CASE No.04 OF 2008

BETWEEN:

AMBLISON SUR
Appellant

AND:

THE PUBLIC PROSECUTOR
Respondent

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice Bruce Robertson
Hon. Justice Oliver Saksak
Hon. Justice Hamlison Bulu
Hon. Justice Christopher Tuohy
Hon. Justice John Mansfield

Counsel: Mr. Hillary Toa for the Appellant
Mr. Bernard Standish and Mr Leon Malantungun for the Respondent

Date of hearing: 25 April 2008
Date of judgment: 30 April 2008

JUDGMENT

1. This is an application for leave to appeal a sentence imposed in the Supreme Court by Treston J. on 14 March 2005.
   
2. The Application was filed on 2 April 2008. Mr Sur had 14 days to appeal his sentence under Section 94 of the Criminal Procedure Code [CAP.136]. Section 201 of the Code required grounds of appeal against the severity of the sentence accompanied by a memorandum to be lodged within 14 days of the date of sentence. The notice of appeal should have been lodged on or before 28 March 2005. The Appellant filed his "Application for leave to file an Appeal and/or Notice of Appeal Out of Time" and accompanying "Notice of Appeal" on 2 April 2008, three years and five days outside the prescribed time limitation.
   
3. At the conclusion of his sentencing remarks the sentencing Judge notified the Applicant that he had "14 days to appeal that sentence" in accordance with Section 94 of Code.
   
4. The facts are not in dispute. On the night of 1 January 2005 at about 7.00pm, the victim’s brother told the victim to stay with his 9 year old son Ansen at Tamanu Beach Resort while he and his wife went into town to dance at a night club.
   
5. At Tamanu Beach Resort, the victim, the victim’s mother in-law and another little boy watched video till about 8.00pm. At 8.00pm a man by the name of Alick Langbel came to the house and called the victim. They then went to the beach. At the beach they had sexual intercourse. Then the victim returned to the house. At the house they switched off the video and went to sleep. The victim and the older woman slept in her bedroom. Because it was hot the victim left the window open and she slept on the floor.
   
6. About 10.00pm the Appellant climbed through the window and entered the room and called the victim. She was shocked to see the Appellant on his bed getting his clothes off. He told the victim he wanted to have sexual intercourse with her. She refused. He took her clothes off but she refused. He kept on forcing her to the extent that he lay on top of her and tried to penetrate her vagina with his penis. He tried to spread her legs out to penetrate her and she suffered pain. He tried many times to penetrate her unsuccessfully. He then kissed her on the vagina and held her breasts and kissed her on the mouth. In the morning, the Appellant got up, climbed through the window and left after the older woman had woken up and seen him.
   
7. He admitted the offence when interviewed by the Police.
   
8. The medical report talked about a tearing to the victim’s hymen, slight bruising and a bruised hymen and a bruised vaginal wall. However, it seems that there had been an earlier rape of the victim that night which could have caused most of those injuries.
   
9. There is no guidance in the Criminal Procedure Code Act as to how the discretion to extend time is to be exercised. Rule 43 of the "Court of Appeal Rules 1973" offers no assistance either. It simply states that "an application to a judge of the High Court... for an extension of time within which notice of appeal may be given shall be in Form 11 of the Second Schedule and shall be sent to the Registrar of the High Court together with a notice of appeal appropriate to the ground or grounds upon which the Applicant desires to question the conviction or sentence or other order, as the case may be".
   
10. This Court in Gamma v. Public Prosecutor, 2007 VUCA 19, adopted what had been held by the Court of Appeal of New Zealand in R v. Knight [1998] NZ LR 583 where it was held (at p.859):
    

"The Applicant must demonstrate some special feature or features particular to the case that lead to the conclusion that in all the circumstances justice requires that leave be given. Amongst the considerations which will also be relevant in that overall assessment are the strength of the proposed appeal and the practical utility of the remedy sought, the length of the delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown."

11. There is similar authority in Australia and the United Kingdom.
    
12. Two main reasons are advanced for the delay. First, that the Appellant had attended a Course of Habitat for Humanity for the entire period during which an appeal must be lodged and hence missed out on the opportunity. Secondly, his legal counsel at that time had advised him to wait until the sensitivity to this case had died down before he file his appeal. These reasons, in our view, do not amount to good reasons for the Court to grant leave to file the appeal.
    
13. Of great concern is the suggestion that legal counsel at that time advised the Appellant to wait until things cooled down before an appeal should be filed. Of course one must be attentive to circumstances at that time, but that does not excuse the counsel from advising his client about the law. We find this ground disturbing, to say the least.
    
14. The proper approach, (and to be fair to the counsel who appeared for the Appellant in the Court below), is for the counsel instructed for the appeal to present the assertion in a sworn statement so that the first counsel can file a sworn statement attesting to the nature of the advice given to the Appellant in the Court below, if it is appropriate.
    
15. What is asserted as grounds for leave, fall short of satisfying this Court that "some special feature or features particular to the case (would) lead to the conclusion that in all the circumstances justice requires that leave be given". We reject those reasons.
    
16. However we must consider the merits of the appeal. We give credit to the prosecution which recognised there was an issue and did not oppose the application for leave to appeal. We grant leave because:-
    

(a) if leave was granted, the Appellant would have, at the very least, an arguable claim that the sentence imposed by the learned sentencing judge was manifestly excessive;

(b) a grant of leave would not cause prejudice to the Respondent;

(c) genuine issues relating to sentencing practice and procedure are raised in the proposed appeal in which clarification and guidance from the Court is sought;

(d) it is in the interest of justice that leave be granted.

17. The learned sentencing Judge appears to have approached the consideration of how to structure the sentences on the basis of weighing up the aggravating and mitigating factors, and having concluded the aggravating factors outweighed the mitigating factors determined all the sentences should be served consecutively. He said (at p4):-
    

"When I consider your sentencing as well as balancing the aggravating and mitigating factors, I must also refer to other matters. Although, the mitigating factors include your plea of guilty, your remorse, the mitigating factors include your plea of guilty, your remorse, your previous good character and good work record and the custom settlement, the overall situation is that the aggravating features clearly outweigh the mitigating ones. For that reason I consider that not only is a suspension of sentence inappropriate but also I consider that your sentence should be cumulative and not concurrent."

18. Where this approach is utilised (which we do not encourage) it is essential that the Judge finally applies the totality principle to ensure that the sentence does not lack proportionality. He did not do so in this case.
    
19. The sentencing Judge fell into error however the sentence is approached. This is a matter where the offences are all within one course of conduct and against one victim. The offence of attempted rape is the lead offence. The offences of unlawful entry and indecent assault are offences committed in association with the lead offence. They could be considered as aggravating factors to the lead offence.
    
20. We agree with the sentencing Judge, who described the offending as disturbing. A 14 year old girl asleep in a home at night should expect to feel safe from harm. To be subjected to an attempted rape over many hours by a stranger who broke into the home and who then subjected her to the further indignation of an act of cunnilingus upon her without her consent is simply deplorable. The learned sentencing Judge was correct to impose a sentence in which the principles of denunciation, condemnation and deterrence were reflected in the end result.
    
21. In our view however when all the circumstances of the case are taken into account the sentence imposed is excessive. The Appellant co-operated with the Police. He admitted the offence to the Police. He pleaded guilty at the first opportunity and performed settlement in accordance with custom.
    
22. It is doubtful that the injuries the victim received were a consequence of the 2 hours plus of attempting to penetrate the victim as the victim was raped a few hours earlier.
    
23. The starting point must be 8 years custodial sentence. About a third is taken off for his early guilty plea and cooperating with the Police and a further deduction for the reconciliation ceremony and other mitigating factors. The effective sentence is 5½ years imprisonment.
    
24. 5½ years is imposed in respect of the attempted rape, the lead sentence. 1 year for unlawful entry. 2 years for indecent assault. These are all to be served concurrently.
    
25. We reject the submission that different rules should be created for completed offences and attempted offences. Penalties to be imposed in both situations will depend on the circumstances of each case. There is no bright line between an attempt and a completed offence. The Judge must assess what is admitted or proved in the particular case.
    
26. The original sentence is quashed.
    
27. Mr Sur is sentenced to 5½ years imprisonment on the charge of attempt rape effective from 25 March 2005 and concurrently to 2 years for indecent assault and 1 year for unlawful entry.
    

DATED at Port-Vila this 30th day of April 2008

BY THE COURT

Hon. Vincent LUNABEK CJ
Hon. Bruce ROBERTSON J
Hon. Oliver SAKSAK J
Hon. Hamlison BULU J
Hon. Christopher TUOHY J
Hon. John MANSFIELD J