Public Prosecutor v Scott [2002] VUSC 52; SC 699-02 (30 January 2002)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

(Criminal Jurisdiction)
Criminal Case No. 699 of 2002
Supreme File No. 01 of 2002

PUBLIC PROSECUTOR

-VS-

MASLEA SCOTT
TULA JEREMIAH

Coram: Before Judge Oliver A. Saksak

Counsel: Mr Wycliffe Tahi for Public Prosecutor
Mr Hilllary Toa for the Defendant

Date of Hearing: 30th January, 2001 - 2:15 p.m.

Charges: Count 1: Rape c/s 91 PCA [CAP.135]
Count 2: Aiding Rape c/s 30 & 91 PCA [CAP.135]

Mr Toa - Seek time to confirm plea. Court adjourns for 5 minutes – Accused Tula to be re-arraigned. Accused Tula to be re-arraigned.

Count 1 - Re-put to Accused by Clerk.

Plea – Guilty.

State Prosecutor – Mr Tahi –

Complainant - 19 years old from Ambrym lives at Million Dollar Point. On 27 December 2001 at MDP – Tula had sex with her without her consent. On 26/12/01 towards early morning. Maslea went to fetch her at her house to a nearby bush and had sex with her.

- Maslea had sex with her with her consent. This was the second time. After sexual intercourse Maslea told her that a friend of his wanted to have sex with her – She told Maslea that she did not wish grabbing her bra and broke it – He held her tight – but she struggled free and ran – Maslea trippled her and she fell down – then Maslea stripped off her clothes and Tula arrived at scene and Maslea left with her clothes and Tula started to touch her private part.
- She could do nothing at the time so Tula had access to have sex with her. She could not lie down due to injury on her shoulder. Tula asked her to sit down on his penis – While he lay down. He had his zipper down and his penis protrucded into her vagina. She felt the effect.
- Tula was moving “up and down” until she felt his sperm ejaculate into her.
- She stopped Tula by speaking to him.
- After that they went to a house close by and Tula took a plaster and bandaged the injury of the prosecutrix. He told her that if she did not resist, nothing would have happened to her.
- Police Investigator Alick Terry – took victims statement and collected evidence as PI Bundle.
- AT interviewed the 2 defendants – Mr Maslea made admission that she had sex with her. Maslea told of his involvment with Ms Ronnie. (See statement) No force was used – after he had finished he asked if Tula would have sex with her – then Mr Ronnie ran and he chased her. He tore her bra – he trippled her and she fell down. He aided the commission of offence by Tula Jeremiah.

Mr Tula made admission to police that he had sex with Ms Ronnie after she fell down. In statement he did not ejaculate. He confirmed that Ms Ronnie sat on his penis for 1 minute. He felt sorry for the victim lose of her injury and gave her VT1.000 and applied rub medicine and plaster on her wounds.

2 Medical Reports – 27/12/01

(1) For Assault – Painful right leg no sign of fracture.
(2) For sexual assault – Ruptured by men – old wound. Small redness on skin. Vagina normal. Cervix smooth. Sperm found.

• - Rape committed.
• - No previous records in respect of both defendants.
• - Apply for prosecution costs.
  

Mr Toa - Defendants submit this was a very unfortunate incident affair continued for sometime – arose out of extra-mental affairs – victim knew this fact – These men are married – it was unfortunate. If 1^st Defendant had known that it would be an unlawful act – Did not apply his mind to it. He did not wipe the girl first – assault done by somebody else.

Fact by 1^st Defendant – Tula

He started the plan with out knowing that Meslea was also taking her. Maslea had taken her 2 times previously.

- Maslea told me to go after having kava that we should go. We went to Ronne’s house – took her and they sat down talking.
- Maslea called me and I followed me – He told me that Ronnie was very wild. He only lied to me. Maslea had sex with her first. He told him to follow him. Maslea pulled her and they walked past me – to a manioc garden. Maslea called me and I went and saw Ronnie with Maslea. I felt sorry for her. Maslea was assaulting her badly. Ronnie was crying. Did not mean to have sex with her just to protect her from Maslea. Maslea had removed all her clothes. Did not mean to do it – just to protect her from Maslea.
- Ronnie felt bad due to injuries.
- Went to house to fetch plaster and VT1.000. Gave her VT1.000. Gave her VT 1.000 to assist her with injury.
- Was afraid of the Police and did not relate the incident properly to Police.

Tula – did not sent Maslea to assault the victim to say yes to sex with Tula.

- If there was no assault, no charge would have been laid

down.

- While victim sat on down of him.
- He paid her money. He became victim of how incident took place. He asked the girl in the first place.
- Tula did not start off the plea. Maslea assaulted her first and then he had sex with her later.
- Tula is a young now of 25 yrs old.
- Lives in a defacts relationship with his wife with 2 children. Not employed at the moment.
- His mother fainted when she learned that Tula was detained in No. 6. Mother is old and has swollen eyes.
- Future plea to build a store – but due to this case project unfinished.
- It is his first offence. He cooperated fully with Police. He made admission statements to Police to save embarrassments by victim.
- Answer convictions of bail fully.

Immediate during or after sex shows no aggravation of

Situation.

- He did not force her on his promise although he touched her private part. He dressed her wounds.
- He asked Malsea to arrange for sex that he would give her money to assist her with cost of going back home or hospital.
- Character of a person not a rapist.
- Just an unfortunate young men.
- For these reasons, Court to be lenient in passing sentence. If Court awards custodial sentence, it should be least than 3 years.

EX pressed deep remorse and regrets.

- He’s no intention of living within kind of live – to be in

Prison while his family suffers.

Second Defendant – Malsea Scott. 23 years.

Married – Victim knew this Tula also a married men. He had sex with victim on one previous occasion. It was a willing indulgence. Confirms receiving VT 1.000 and using it.

Defendant is a unfortunate young men.

Extra-marital affairs wet at of Land consent to SI was on his side. They were having sex earlier before Tula came in. Relation was consensual. Disagreement only when Defendant asked if Tula could come in.

Submit that in view of Schott.

Version of fact - After drinking kava – Both he and Tula went to fetch Ronnie. Kava was taking effect – but they carried on their plan – went to Ronnie’s house. Ronnie came out and ran away. Maslea followed her to the garden and had sex with her. Told Ronnie that Tula would have sex with her. She was agreeing and disagreeing until they reached Tula. Maslea got angry and made Ronnie fall down – she took a branch of manioc and hit her with it. Took her home and went to sleep. He is building a house – and is in complete.

- He is taking care of his father of 57 years and mother of 62 years.
- He has 3 children with his wife – 2 are attending school
- He has no gainful employment.
- Natasha had malaria for 3 weeks.
- Income from fishing and garden.
- First offence.
- Cooperated with police.
- Freely admitted to police.
- No previous convictions.
- Expressed deep remorse.
- He does not wish to continue to live this kind of life.
- His wife Mrs Scott wrote a letter - asking to secure release of defendant – because of he 3 tender aged children.
- Garden is a long way – 3 kilometres.
- Leaks during raining periods.
- School about to begin.
- Those are the difficulties faced by these couple.
- He is a unfortunate young men – of Tula did not have sex with her it would not be far aiding a abetting rape.
- Relationship may continue as it involves consent – where a third party is involved, we have a crime.
- As t medical report – it is clear that it shows bruises of assault as a result.
- Submit it was not planned by Maslea to assault Ronnie with a manioc branch or to tear her bra – lose relation was consensual in the first place.
- Submit on his behalf that he had intention to aid Tula to rape Ronnie is not correct.
- Court to exercise leniency towards this Defendant.
- Expresses deep remorse and regrets.
- Does not wish to continue to live in this kind of relationship.
- They both realise the consequence of their actions – they will live with the thoughts of this incident all their lives.
- Submit maximum penalty is one of less than 3 years.

Mr Tahi in reply

- 2 defendants contradicted their statements with the police with that give to counsel. Both are blaming each other. But Tula promised Maslea he would pay him if he took Ronnie to him to have sex with her.
- Maslea’s version that Tula forced him in their versions do not corroborate.
- Defendants are married men in responsibility to the family in community and the public.
- Families asking leniency – Defendants are not young kids – where is responsibility as a leader in the first place – misuse.
- Maslea acted on promise of Tula to take Ronnie to Tula – aided Tula to have sex with out consent.
- As to mitigation that there was consent – we submit prior consent was between Maslea and Ronnie – after that the 2^nd sexual affairs was obtained by force.
- Penetration was complete – done through force.
- Defendants committed offence charged with – that sentence should be below 3 years. It is a serious offence under Penal Code Act [CAP.135].

Court - Convictions against 2 defendants.

Tula Jeremiah – 3 years imprisonment.

Maslea Scott - 3 years imprisonment.

Suspended for 2 years.

No Order for costs.

DATED at Luganville this 30^th day of January , 2002.

OLIVER A. SAKSAK

Judge