Public Prosecutor v Vulu [2004] VUSC 51; Criminal Case 020 of 2004 (8 September 2004)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

Criminal Case No. 20 of 2004.

PUBLIC PROSECUTOR

-v-

ANDREW SEREI VULU

Coram: Mr. Justice H. Bulu

Ms. Hellen Wodak for the Public Prosecutor
Mr. John Stephens for the Defendant

Hearing Date: 3 September 2004.
Judgment Date: 8 September 2004.

SENTENCE

INTRODUCTION

1. On 31 May, 2004, Mr. Vulu attempted to have sexual intercourse with X who was only 7 years old. The matter was reported to the police on 8^th June. Mr. Vulu was charged with attempted rape. He pleaded guilty to the charge on 20^th of August 2004.
   
2. Rape or attempted rape is a very serious crime in this country. Sections 28, 90 and 91 of the Penal Code are the relevant provisions. The combined effect of those provisions is that anyone charged with rape or attempted rape faces a possible term of life imprisonment.
   
3. Mr. Vulu has been remanded in custody since 19^th August 2004 because he had breached one of his bail conditions.
   

ISSUE FOR DETERMINATION

4. The only issue for the determination in this proceeding is sentencing. The accused, Mr. Vulu has pleaded guilty to the offence of attempted rape. In the circumstances of his particular offence what would be the appropriate sentence.
   
5. Submissions by counsels on sentencing were made on 3^rd September 2004. This is the sentence.
   

FACTS

6. The facts are not disputed. On 31 May 2004, Mr. Vulu attempted to have sexual intercourse with X, a 7 year old girl, who was staying with him and his family in Epau Village because her parents had gone to Port Vila.
   
7. X has a close relationship to Mr. Vulu and calls him “Papa”.
   
8. Sometimes between 7 am and 8 am, Mr. Vulu entered the room where X was sleeping alone. He removed her underwear. X turned away from Mr. Vulu and slept on her side with her backside to him. Mr. Vulu had removed his own pants by then and tried to penetrate X from behind. The attempt was not successful. She tried to come away from him but he was holding her too tightly.
   
9. Mr. Vulu next moved on top of her. As her vagina was too small, he could not penetrate her. X’s vagina was very sore and she was afraid and continued to cry. She tried to call out, but Mr. Vulu held her mouth, telling her not to make any noise.
   
10. Mr. Vulu did not ejaculate. After 5 minutes, he came off her, and said to her “we will go to the bush and I will push you through the window and then you will run”. Mr. Vulu then went to sleep in his bed and X ran to her home. She was afraid and did not tell anyone for three days.
    
11. On 2 June 2004, she told her friend, Joyce John, aged 6. Joyce then told her mother, Leinapon John, who confirmed the story with X on the same day. X told her mother on June 7 2004 and it was reported to the police on 8 June 2004.
    
12. On 7 June 2004, X was examined by a midwife, Annie Charlie, and a nurse practitioner, John Taserei, who found that:-
    
    1. X’s vagina had not been penetrated;
    2. X’s stomach was sore and she had been throwing up; and
    100. She was otherwise normal.
         
13. Mr. Vulu was questioned by the police on 14 June 2004. He was cautioned and admitted the attempted rape. On 20^th August 2004 he pleaded guilty to the charge of attempted rape.
    

AGGRAVATION

14. The Public Prosecutor submitted that the only reason the intercourse did not occur when attempted by the defendant was that X’s vagina was too small. This made complete commission of the intercourse impossible. This was a circumstance unknown to the offender. These attempts are punishable in the same manner as rape, which carries a maximum penalty of life imprisonment, and the criminal responsibility of the defendant is not diminished under section 28 (5) of the Penal Code Act.
    
15. The Public Prosecutor further submitted that the position in Vanuatu in this type of offences is now well established. The starting point for a contested case of rape committed by an adult without aggravating or mitigating features is five years. Where the rape is committed by a person who is in a position of responsibility towards the victim, the starting point should be eight years: cases on point are Public Prosecutor -v- Ali August [2000] VUSC 73; Criminal Case No. 14 of 2000; Public Prosecutor -v- Scott and Tula, [2002] VUCA 29; Court of Appeal, Criminal Case No. 2 of 2002. In this case, the 7 year old complainant had a close relationship to Mr. Vulu and called him “Papa”, and on this occasion was staying with Mr. Vulu and his family whilst her parents were in Vila. The breach of trust of X and her family by Mr. Vulu means that the starting point for the Court is 8 years, Prosecution submitted.
    
16. The case of Public Prosecutor –v- Ali August identified certain factors and their presence in a rape case to amount to aggravating factors. It was held that where any of those aggravating features is present, then the sentence should be “substantially higher” than the figure suggested as the starting point. In this case, two of those aggravating features identified in that case are present. They are:-
    
    1. That the victim is very young, being only 7 years old; and
       
    2. The defendant’s prior convictions for sexual assaults on a child.
       
17. In Criminal Case 104 of 2000, the defendant was convicted of indecent assault and attempted unlawful sexual intercourse with a 10 year old girl.
    
18. In that case, the victim was similarly very young and had a similarly close relationship with Mr. Vulu, calling him her “Uncle”.
    
19. Mr. Vulu was given 12 months imprisonment for the first count (indecent assault) and 9 months for the second count (attempted unlawful sexual assault), to be served concurrently. Mr. Vulu has re-offended. The period has not been rehabilitated under section 58 (1) (b) of the Penal Code Act.
    
20. The Prosecution submitted that in all the circumstances of this case the appropriate sentencing range is 10-12 years with an appropriate reduction for the plea of guilty.
    

MITIGATION

21. Counsel for Mr. Vulu acknowledged that Public Prosecutor v. Scott and Tula established the sentencing guideline in this type of offences. He told the Court that apart from the fact that X is young and Mr. Vulu had responsibility to take good care of her, there was no other aggravating features. The rape was not planned. No weapon was used. The offence was not repeated.
    
22. Counsel informed the Court of the following mitigating factors:-
    
    • (a) Mr. Vulu cooperated with the Police from the time he was interviewed;
      
    • (b) He was remanded in custody until he entered a plea of guilty;
      
    • (c) In pleading guilty he has saved X from coming to court and relive the trauma, and the Court’s time. The medical report showed that X was not further subjected to indignities or perversion;
      
    • (d) Mr. Vulu has pleaded guilty. In line with the guideline Judgment, the sentence must be reduced by one third. That is one third of the starting point which, Mr. Vulu told the Court, is 5 years;
      
    • (e) Mr. Vulu is 33 years old and has 6 children. The eldest is 16 and the youngest is 7 years old. Five of the children are at Epau Primary School. From their gardens they sell their produce in the Market in Vila to meet school fees for their children, medical costs & other commitments of the family. They make a profit at around VT8,000 per trip to the market. They make two trips a month to the market;
      
    • (f) The defendant is sorry for what he has done. No custom ceremony has been performed as the victim’s family have objected to it. He expressed great remorse;
      
23. Counsel on behalf of Mr. Vulu concluded that in the circumstances of this case, a term of two years is sufficient, and that the term should be suspended.
    

THE LAW

24. Sections 28, 90 and 91 of the Penal Code are the relevant provisions of law in this case. They are set out fully below:-
    

28. “ATTEMPTS

(1) An attempt to commit a criminal offence is committed if any act is done or omitted with intent to commit that crime and such act or omission is a step towards the commission of that crime which is immediately connected with it, or would have been had the facts been as the offender supposed them to be.

(2) An attempt shall be committed not withstanding that complete commission of the offence was impossible by reason of a circumstance unknown to the offender.

(3) Acts committed in mere preparation of an offence shall not constitute an offence.

(4) The commission of an attempted offence shall constitute an offence punishable in the same manner as the offence concerned

(5) The criminal responsibility of a person committing an attempted offence who voluntarily withdraws from the attempt before the offence has been committed shall be diminished.”

“RAPE DEFINED

90. Any person who has sexual intercourse with another person:-

(a) without that person’s consent; or

(b) with that person’s consent if the consent is obtained:-

(i) by force; or

(ii) by means of threats if intimidation of any kind; or

(iii) by fear of bodily harm; or

(iv) by means of false representation as to the nature of the act; or

(v) in the case of a married person, by impersonating that person’s husband or wife;

commits the offence of rape. The offence is complete upon penetration.

“PUNISHMENT OF RAPE

91. No person shall commit rape.

Penalty; imprisonment for life”

25. Section 28 (2) says that “an attempt shall be committed notwithstanding that complete commission of the offence was impossible by reason of a circumstance unknown to the offender.” The complete commission of intercourse in this case was not possible because X’s vagina was too small. This was “a circumstance unknown to the offender, (Mr. Vulu).”
    
26. The circumstances of this particular offence does not, in my view, fall within section 28 (5) of the Penal Code Act. Mr. Vulu did not voluntarily withdraw from the attempt before he committed the offence. He had been trying to penetrate X’s vagina for some 5 minutes before he gave up the attempt.
    
27. The combined effect of section 90 and 91 of the Penal Code Act can be summarized as follows:-
    
    • (1) that no person must commit rape – if you do, you face imprisonment up to life.
      
    • (2) Any person who has sexual intercourse with another person without that person’s consent, commits the offence of rape. And Section 29 (4) states that “the commission of an attempted offence shall constitute an offence punishable in the same manner as the offence concerned”.
      
28. In this case, attempted rape carries the same penalty as rape. That is a maximum term of life imprisonment.
    

DISCUSSION

29. There are clearly aggravating factors and mitigating factors in the circumstances of this case.
    
30. As to aggravating factors these are:–
    

(a) Mr. Vulu is an adult of 33 years of age;

(b) X is a mere child of 7 years old. She was completely innocent and fully trusted Mr. Vulu to take proper care of her.

(c) Mr. Vulu was in a position of responsibility to X. She was entrusted to him for proper care and protection while her parents were away in Vila.

(d) Mr. Vulu used force necessary to commit attempted rape. He firmly held X against him. He blocked her mouth so that she could not call or cry out.

(e) Mr. Vulu has re-offended.

(f) Mr. Vulu while waiting his sentence breached a bail condition.

31. Sexual offences are very serious offences and the law treats it accordingly. Rape is perhaps the most serious of them all. When it happens to a child of tender years such as X in this case, the damage done is enormous. The psychological damage is impossible to know or measure. X could be marred for life.
    
32. In Public Prosecutor –v- Kevin Gideon [2002] VUCA 7 the Court of Appeal said that “it will only be in the most exceptional of cases that suspension could ever be contemplated in a case of sexual abuse”. I find nothing in this case that brings it into that category of exceptional cases. Men in responsible positions such as Mr. Vulu was in, have a higher duty to ensure that that duty is not compromised in any way at all, more so by themselves. The duty to take proper care of a child in a situation such as that is a special one. Special in that a bond or relationship exists between them. To breach that duty in the manner that Mr. Vulu had done is to breach that bond or relationship and is most heart-breaking and cruel. Men in such situations must learn to honour their commitment and most importantly not to abuse little girls in their care.
    
33. Mr. Vulu has been convicted of indecent assault and unlawful sexual intercourse of a 10 year old child in 2000, and served a sentence of 12 months. That child called him uncle. The child in the present case calls him “Papa”. In that other case the victim had a close relationship with the defendant. Just like this case. The parents of X had trusted the defendant to take good care of X while they were gone. What happened was a tragedy. Men who take advantage sexually of little girls in their care, in my view, forfeit the right to remain in the community.
    
34. What would be the appropriate sentence in this case. In Public Prosecutor –v- Scott and Tula the Court of Appeal laid down certain principles to be taken into account in this type of offences. At page 3 of the judgment it said “Where a rape committed by ... a person who is in a position of responsibility towards the victim ... the starting point should be eight years.” The Court of Appeal went on to identify factors which, if present, in a rape case then the offence of rape should be treated as aggravated. Such factors are firstly, where the defendant has previous convictions of other sexual offences and secondly, where the victim is young. These two factors are both present in this case. That in my view raises the starting point from 8 to a higher level. I consider 11 years as the appropriate starting point in the circumstances of this case. I reject the submission by Mr. Vulu that the starting point should be 5 years.
    
35. There are certainly mitigating factors. They are:-
    
    • (a) Mr. Vulu pleaded guilty;
      
    • (b) Mr. Vulu cooperated with the Police;
      
    • (c) Mr. Vulu said he was sorry for what he has done and is remorseful;
      
36. Mr. Vulu has attempted to perform a reconciliation ceremony in line with custom but was not successful. The other party has refused to perform such ceremony.
    
37. The financial situation of the family is a matter that I consider irrelevant for the purpose of sentencing. It should not affect the nature of the sentence.
    
38. Having taken a careful consideration of the aggravating factors and the mitigating factors, I find that the aggravating factors far outweigh the mitigating ones.
    
39. It is the duty of the Court to impose a sentence that befits the offence as closely as possible. This is not an easy exercise. Further, the sentence must serve as a deterrence to other men in similar situations. Finally, it must protect little girls from persons with or who have such tendency to violate them sexually.
    

SENTENCE

40. Mr. Vulu, I sentence you today to a term of 11 years in prison. You have pleaded guilty to the offence. I take that into account. Accordingly I reduce the term of 11 years by one third. 20 days you have spent in custody is also deducted. That leaves 7 years, 3 months and 21 days. Mr. Vulu you will serve 7 years 3 months and 21 days in prison.
    
41. You have a right to appeal this decision within 14 days.
    

DATED at Port Vila, this 8^th day of September 2004.

H. BULU
Judge.