Public Prosecutor v Andy [2011] VUCA 14; Criminal Appeal 09 of 2010 (8 April 2011)

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

Criminal Appeal Case No. 09 of 2010

BETWEEN:

PUBLIC PROSECUTOR
Appellant

AND:

KAL ANDY
Respondent

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice John Mansfield
Hon. Justice Daniel Fatiaki
Hon. Justice Raynor Asher
Hon. Justice Robert Spear

Counsel: Mr. P. Wirrick for the Appellant
Mr. S. Stephens for the Respondent

Date of Hearing: 5th April 2011

Date of Decision: 8th April 2011

JUDGMENT

Introduction

1. On 13th December 2010, Karl Andy appeared for sentence having pleaded guilty earlier in the year to one charge of unlawful sexual intercourse contrary to section 97(1) of the Penal Code Act. Saksak J. sentenced Mr Andy under section 56(1) of the Penal Code. That section gives the Court the power to order an offender to come up for sentence if called upon. It is effectively a deferral of sentence so that if certain conditions are fulfilled no sentence will be imposed. The deferral conditions here included requirements that he not re-offend or consume prohibited substances. Additionally, he was required to pay further compensation to the victim in the sum of VT 100,000.
   
2. This is an appeal by the Public Prosecutor against Saksak J's decision. It is submitted that the judge erred in deferring the sentence and that a sentence involving a term of imprisonment should have been imposed. The Public Prosecutor submits that the deferred sentence was a manifestly inadequate penalty.
   

The facts

3. Mr. Andy is 30 years old. He is married, has four children, and is a qualified nurse. On 24th April 2010, he had spent the evening in various places drinking a very considerable amount of kava, beer and spirits as well as smoking some cannabis. One of his daughters was a close friend of the victim who was a 10 year old girl at the time. His daughter had invited the victim to her father's house in Luganville, Santo. After the two girls had cleaned up around the house, they went to sleep in Mr. Andy's room. When Mr. Andy returned home in the early hours of the morning his daughter and the victim were asleep in his room. Mr. Andy instructed his daughter to leave the room. Once alone with the victim he told her to remove her clothing. She was afraid of Mr Andy and reluctantly did so. Mr Andy then proceeded to take off his clothes so that both he and the victim were naked. He started to lick the victim's vagina and he did this for some considerable time. He proceeded to digitally penetrate her. He put his fingers both in her vagina and her anus. He masturbated during this process. The victim then said she wanted to go to the toilet and Mr. Andy let her go. She then made her escape from the house and ran home to her Mother. She told her Mother what had happened and her Mother then contacted the police.
   
4. The police medical report records that the victim's labia majora was blood stained, her vestibule bruised and her hymen was torn and bleeding.
   
5. Mr. Andy was originally charged with sexual intercourse without consent under section 91 of the Penal Code. The penalty for that crime is imprisonment for life. The Prosecutor subsequently obtained leave to amend the charge to one count of unlawful sexual intercourse with a child under the age of 13 under section 97(1) of the Penal Code to which the Mr Andy pleaded guilty. The penalty for that crime is 14 years imprisonment.
   

The approach to this appeal

6. The Public Prosecutor has a right of appeal to this court against the sentence imposed by the Supreme Court under section 200(4) of the Criminal Procedure Code [CAP 136]. This court may intervene on a prosecutor's appeal if the sentence is manifestly inadequate. This may arise if the judge has acted on the wrong principle or has clearly overlooked, misstated or misunderstood a salient feature of the evidence. It may arise if the sentence is so clearly wrong that it could not have been imposed without there being a miscarriage in the exercise of the discretion; for example, see R v Gideon [2002] VUCA 7 which followed Skinner v The King (1913) 16 CLR 336, 340.
   

The issues

7. Mr Wirrick, for the Public Prosecutor, in careful submissions, made wide ranging criticisms of the judge's decision. He submitted that the judge failed to follow precedent, that he imposed a sentence which did not reflect the seriousness of the offence, that he did not sufficiently weigh aggravating features including the principles of denunciation and deterrence, that he failed to identify adequate reasons for deferring the imposition of any sentence and that, in all these circumstances, the sentence was manifestly inadequate.
   
8. Mr. Stephens, who appeared for Mr. Andy, defended the deferred of sentence. He submitted that Mr. Andy's case was extreme and unusual given various mitigating factors relating to him personally. He also relied on Mr. Andy's payment of a VT100,000 compensation before the hearing, and a further VT100,000 in compliance with the terms of the deferred sentence order.
   
9. The learned judge, in his sentencing decision, did not identify either the starting point or the end sentence that he would have imposed had he not deferred the sentence. Given the broad nature of the criticisms of the approach taken by the judge, we think it necessary to first set out the approach that should be adopted in the sentencing process.
   

The correct approach to sentencing

10. The Penal Code [CAP 135] contains specific provisions relating to sentencing at ss 36 - 58Zese sections refer efer to a number of particular matters but make no comprehensive statement as to the principles to be appliedixing the correct sentence. Undoubtedly, these principles include the need to denounce the the criminal conduct, the need to deter offenders and those in the community who might be tempted to offend, and the need to protect the community from those offenders. The harm and loss suffered by victims must also be recognized. There are specific provisions in the Penal Code for compensation for victims at sections 39 - 49.
    
11. Of equal importance to these principles is the requirement, in section 37 of the Penal Code, that the Court must, in addition to other sentencing options, have regard to the possibility to keeping offenders in the community so far as that is practicable and consistent with the safety of the community.
    
12. There is also reference in the Penal Code at s 38 to the requirement to promote reconciliation. Other principles, such as the need for consistency of sentencing with other sentences being imposed in Vanuatu, and parity between offenders will also be applied.
    
13. At a sentencing hearing, a court will always have regard to the maximum sentence that has been prescribed by Parliament as a critical reference point. That being the maximum penalty imposed by Parliament for the most serious offending, it provides a standard against which a sentence for offending of lesser culpability can be assessed.
    
14. The first task of the Court is to set the starting point bearing in mind the maximum penalty for offending of the most serious culpability.
    

First Step: The Starting Point

15. The starting point can be defined as the sentence of imprisonment that reflects the seriousness of the offence and the culpability of the actual offending; that is, the specific actions of the offender and their effect in the context of the specific charge and its maximum sentence. In this first step, there is no consideration of circumstances which are personal to the offender. The calculation has regard only to the seriousness of the offending.
    
16. In a case such as this where the charge is unlawful sexual intercourse with a child under the age of 13, the factors to be taken into account in fixing the starting point will include how the offending arose; what happened during the course of the offending and the effects on the victim. Through this process of assessment, bearing in mind the principles of sentencing and the maximum term, a correct starting point of imprisonment is ascertained. If there are relevant judgments relating to the type of offending, these will be considered in the course of the sentencing process to ensure consistency of sentencing.
    

Second Step: Assessment of factors personal to the offender

17. Once the starting point has been reached the Court, then embarks on the second step which is the assessment of the aggravating and mitigating factors relating to the offender personally. It is under this head that aggravating matters such as the past history of the offender will be considered. If there are previous convictions, particularly for a similar type of offence, this may result in the starting point being increased. Under this head, mitigating factors such as a lack of previous relevant convictions, good character and remorse will be assessed and may result in a reduction of the starting point to reach a second stage end sentence.
    

Third Step: Deduction for Guilty Plea

18. Once this process has been completed, as a third step, the trial judge will then consider what discount from the second stage end sentence should be applied for a guilty plea. The greatest discount allowed under this head will be a discount of one third where the guilty plea has been entered at the first reasonable opportunity. A later guilty plea will result in a smaller discount. No discount is available under this head if the charges have been defended through a trial.
    
19. By this two or three stage approach, an end sentence is reached.
    

Particular factors relevant to section 97

20. Section 97 of the Penal Code provides:
    

97. Unlawful sexual intercourse

(1) No person shall have sexual intercourse with any child under the age of 13 years.

Penalty: Imprisonment for 14 years.

(2) No person shall have sexual intercourse with any child under the age of 15 years but of or over the age of 13 years.

Penalty: Imprisonment for 5 years.

It is no defence to a charge under this section that the child consented or that the person charged believed that the child was of or over the age in question.

(4) The child shall not be charged as a party to an offence under this section.

21. Section 89A defines sexual intercourse broadly as including penetration to any extent of the vagina or anus by any part of the body of another person (s 89A(a)) or by an object (s 89A(b)). It also extends to the licking of the vulva or vagina (s.89A(d)).
    
22. The distinction between sexual offending against children under the age of 13, (s 97(1)), and children under the age of 15 years but over the age of 13 years, (s97(2)), shows the importance to the sentencing process of the age of the victim. In relation to s 97(1) offending, the relevant factors to assessing culpability in order to fix a starting point (the first step) are as follows:-
    
    • (a) The age of the victim. As a general principle, the younger the victim, the more culpable the offending;
      
    • (b) The harm suffered by the victim. The more harmful the offending the more serious it is. Physical harm such as tears, cuts and bruising will add to culpability. If the offending involves unprotected sex with the attendant risk of pregnancy or infection, that makes the offending more serious. The psychological impact on the victim is also important.
      
    • (c) Breach of trust. Offending within the family environment where children should be secure is particularly serious. There may be other relevant relationships of trust, such as trust reposed in a neighbour or a teacher.
      
    • (d) The age of the offender. A fully mature offender will be more culpable than an immature young person.
      
    • (e) The degree of violation. The seriousness will increase as the degree of violation increases. For example, the use of a penis may (but not necessarily will) be more physically intrusive and therefore more serious than the use of a finger. A brief penetration as opposed to a lengthy episode may be less serious.
      
    • (f) Premeditation. A planned episode will be more serious than a spontaneous event.
      
    • (g) The scale of the offending. Repeat offending, or offending over a prolonged period of time will be more serious.
      
23. In assessing culpability, the absence of aggravating factors may lead to a lower starting point. There may be particular factors relating to the offending of particular importance in this regard, such as the lack of a large age gap between victim and offender.
    

Did the judge err?

24. It is well settled, and clearly stated in Public Prosecutor v. Gideon [2002] VUCA 7, that it will only be in the most extreme cases that a suspended sentence will ever be contemplated in a case of sexual abuse. This same approach applies to deferred sentences. This is particularly so where the victim is of tender years or otherwise vulnerable. In Gideon, which involved a charge under 97(1) of the Penal Code, the appeal was allowed, a suspended sentence set aside, and a sentence of imprisonment imposed. As was observed, men must learn that they cannot obtain sexual gratification at the expense of the weak and the vulnerable. The complainant in that case was 12 years old but there were not the same aspects of breach of trust and injury as in the instant case. There were three occasions of sexual abuse including one of full penile intercourse. The Court observed that a starting point of at least 6 years was appropriate. As in the present appeal, the offender was of excellent character and had provided compensation under s. 119 of the Criminal Procedure Code. Nevertheless, a sentence of imprisonment was imposed.
    
25. In granting a deferred sentence here, the judge was influenced by Mr. Andy's qualifications and good work as a nurse, his supportive family and his general good character. The payment of compensation and the further compensation ordered also influenced his approach. These were, indeed, all strong mitigating factors but they could not be regarded, either alone or together, as the very exceptional circumstances required for a suspended sentence much less a deferred sentence. Sadly, it is often the case that men of otherwise good character offend in this way.
    
26. The judge also relied on the decision of Public Prosecutor v. Randy Kenneth [2002] Criminal Case No. 51. However, that Supreme Court judgment related to the lesser charge of indecent assault under section 98(2) and involved a 14 year old boy and a 15 year old victim. The suspended sentence imposed there has no relevance to the present case.
    
27. Therefore, the judge did not apply the correct principles or rely on the correct relevant precedents. For the reasons that we will now set out, we have no doubt that a custodial sentence had to be imposed in this case. The judge erred in his approach. We will now consider what the appropriate sentence should have been and the sentence that we must now impose.
    

First consideration; the starting point

28. Under this heading, it is necessary to consider the culpability of the offending. A number of aggravating factors stand out.
    
29. The victim was 10 years old. Evidence on the file shows that she was still very much a little girl. The digital penetration was painful for her and injured her. It involved a breach of trust in that she was at her friend's father's house, where she could have been expected to have been looked after and protected rather than exploited. Mr Andy was a mature man of 30. Although the penetration was digital rather than penile, it was clearly deep penetration which can be compared, in its impact, to full sexual intercourse. We note that there was only a single incident, which appears to have not been planned.
    
30. When we have regard to the maximum sentence of 14 years imprisonment, we consider that these factors require a starting point of six to seven years' imprisonment.
    

Second consideration; factors relevant to the offender

31. We now turn to aggravating and mitigating factors relating to the offender.
    
32. There are no aggravating factors personal to Mr. Andy. He has no past record.
    
33. There are a number of mitigating factors. First, he is entitled to call upon the fact that he has no prior convictions and that he has been of good character. He is a qualified nurse and he was able to present a considerable number of testimonials to the court, where senior members of the community commented most favorably on his ability, his dependability and his present character. He has his wife and four children who are dependent on him.
    
34. He was also seen by the Probation Officer as being remorseful. In this respect, we note that he gave the victim and her family VT100,000 and three custom mats. Since then, in accordance with the court deferred sentence order, he has paid a further VT100,000. As was stated in Public Prosecutor v Gideon, while those payments are not relevant to the nature of the sentence, they can be taken into account in assessing the quantum of the sentence during this second stage assessment.
    
35. These three factors, good character, remorse and compensation warrant a significant deduction of approximately 15%.
    

Third consideration; the guilty plea

36. We are satisfied that the guilty plea was entered at the first reasonable opportunity. Mr. Andy had been facing the more serious charge under section 91 of the Penal Code to which he had pleaded not guilty. He entered a guilty plea once the charge was amended to the lesser offence under section 97. The entry of that guilty plea saved the victim from the ordeal of giving evidence at a trial. Given this, and the saving of costs arising from the lack of a need for a trial, we are prepared to give the maximum discount of one third.
    

Conclusion

37. The appropriate sentence on a successful Public Prosecutor's appeal such as this, where an offender faces the particular disappointment and disruption of having to go to prison after having apparently avoided that penalty, is the lowest that can be imposed within the range of available penalties. In this case, it should be the lowest sentence of imprisonment available within the range that could be imposed.
    
38. The lowest starting point available in this case is six years imprisonment. From that, the mitigating factors relating to Mr. Andy personally must be deducted, which would give a discount of approximately 15%. Then there is the guilty plea providing a discount of approximately one third, giving an end discount of just over 45%. However, we are conscious that Mr Andy has, for four months, had to meet the conditions that were imposed on him as part of the deferral of sentence. Also, we note Mr Stephen's advice to the Court that even if the deferred sentence was quashed Mr Andy would not seek the return of the VT 100,000 paid in accordance with the conditions. Taking that into account, we have decided that a discount of 50% is justified. So we reach an end sentence of three years imprisonment.
    

Result

39. The appeal is allowed. The deferred sentence order and conditions are quashed and they are substituted by a sentence of three years imprisonment.
    

DATED at Port Vila this 8th day of April, 2011.

BY THE COURT

Chief Justice Vincent Lunabek

Justice John Mansfield

Justice Daniel V. Fatiaki

Justice Raynor Asher

Justice Robert Spear