Public Prosecutor v August [2000] VUSC 73; Criminal Case No 014 of 2000 (28 November 2000)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

Criminal Jurisdiction
CRIMINAL CASE No. 14 of 2000

PUBLIC PROSECUTOR

-v-

ALI AUGUST

SENTENCE

This is the sentence of the defendant, Ali August who has been convicted by this Court of the offence of Rape, contrary to Section 91 of the Penal Code Act [CAP 135]. The maximum penalty imposed by the criminal law is life imprisonment.

The defendant had sexual intercourse with the victim complainant on the early hours of the 28^th July 2000 at the Airport Area, Port-Vila, Efate. The complainant did not consent to the sexual intercourse with the defendant as found by the Court.

The complainant and the defendant had sexual intercourse previously. They know each other. In April 2000, they had sexual intercourse and the complainant was bleeding. On 28 July 2000, after the sexual intercourse, the complainant/victim was bleeding and got admitted to the hospital. She spent 4 days before she was released. The defendant did not know that the victim was bleeding. He knew later on. The defendant, Ali August is a young man of 22 years old. He lives with a de facto wife and they have 3 children. His First child was born in 1994, the second in 1997 and the third in 1998.

The defendant has no previous convictions. This is the first time he was brought to Court charged and convicted of a criminal offence.

The offence of rape is always a 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 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 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 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 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 then 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 to 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.

In this case, upon assessing all the facts, the appropriate sentence is 4 years imprisonment.

The defendant had already spent some time in jail from 2nd August 2000 until today (28 November 2000). That period therefore will be discounted.

The defendant, Ali August, is sentenced to 3 years and 8 months imprisonment.

DATED at PORT-VILA, this 28^th DAY of NOVEMBER, 2000

BY THE COURT

Vincent LUNABEK J
Acting Chief Justice