Public Prosecutor v Sam [2004] VUSC 78; Criminal Case 001 of 2004 (25 May 2004)

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

Criminal Case No. 01 of 2004

PUBLIC PROSECUTOR

-v-

SONG SAM

Coram: Chief Justice Vincent Lunabek
Mr Jona Mesau – Clerk

Counsel: Ms Kayline Tavoa for the Prosecutor
Mr Kausiama Jacob for the Defendant

Court Held at: Isangel, Tanna

Hearing Date: 24th – 25th May 2004
Sentence Date: 25th May 2004

SENTENCE

This is the sentence of the accused SONG SAM. The Accused is initially charged with the offence of Indecent Assault, Contrary, to Section 98 (1) of the Penal Code Act [CAP 135]. The defendant pleaded guilty as charged. The prosecutor thereafter informed the Court that she would like to apply to have the above charge withdrawn and have it replaced by a new charge of Attempted Rape, Contrary, to Sections 28 and 91 of the Penal Code Act [CAP 135].

After short discussions with both counsels the charge of Indecent Assault is withdrawn and dismissed by the Court with the consent of both counsel. The Accused is then re-arraigned with the charge of Attempted Rape, Contrary to Section 28 and 91 of the Penal Code. The Accused, Song Sam pleaded guilty to the new offence as charged.

Rape is a very serious offence. The maximum penalty imposed by Parliament is life imprisonment. The offence of Attempted Rape is also a very serious offence.
Parliament makes no difference in terms of penalty for the offence of rape and attempted rape. The offence of Attempted Rape carries a maximum penalty of life imprisonment as set out under Section 28 (4) of the Penal Code.

Song Sam, you are from Louniel Village, White Sands, Tanna. You are 17 years of age at the time of the commission of the offence you are now charged with.

You pleaded guilty to the offence of attempted rape, and you admitted that on the 1^st of January 2004 at about 2:00am O’clock in the early part of that day, you entered into the house of the victim (V). V. is a little girl of 4 years of age. She was sleeping in her bedroom. She was alone. When you saw V., you intended to have sexual intercourse with her. You removed her little panty. You spat on her vagina. You tried to penetrate her vagina with your penis. You could not penetrate her because her vagina is too small. The little girl cried. Her mother, Mrs Konating Kalo was about 20 meters away while helping other ladies to do the cooking, rushed at home. She saw you in her house. Her daughter was no longer lying in her bedroom. She was lying near the door. Mrs Kalo asked you as to why her daughter was crying. You told Mrs Kalo, you walked on V. that is the reason she was crying. Then you disappeared.

Mrs Kalo made a statement. The contents of her statement are not in dispute. She left her little girl in the room. She was sleeping. She left a hurricane light. She joined other ladies to prepare foods for the next day, 1 January 2004.

You asked for yeast to prepare a mixture. You were told by other young men present there that the yeast is already mixed and it was in a house next to the V’s.

You went to search for the said mixture. 20 minutes after you left, Mrs Kalo heard and recognized the cries of her child. She rushed and saw you at her house. She then enquired about what happened to her child. You told her you walked on her child as she slept near the door and you did not see her.

The mother felt that her daughter’s panty was wet. She thought the little girl urinated. But on closer examination, she realized that her little girl did not urinate. Her bed and the mattress were not wet. She realized then that the substance on the private part of her little girl is not urine but a substance which is a little bit sticky. She reported the matter to her chief and the matter was later reported to the Police on 8^th January 2004. After you are cautioned by the Police officer John Roel who took your statement, you made an admission statement on 9^th January 2004 to the following effect:

On 31 December in the night, you did not recall about the time, you went to get yeast for bread baking. Some of your friend prepared a mixture with yeast and hidden it in a house near the Victim’s. Instead of getting the mixture, you entered into Mrs Kalo’s house. You saw her little girl sleeping. She was alone. You said to yourself:-

“Nao thing thing blong mi i se:

“Nawia mi fuckem smol girl”."

You said you removed her little panty down to her knees. You spat on her vagina. You said you slept on top of the little girl.

You said, “mi stap fuckem hem be kan blong hem i smol tumas i mekem se mi stap gliss gliss nomo”. You said the little girl got up and cried loudly.

You said you feared that you will be caught. You tried to get outside quickly and ran away.

But Mrs Konating Kalo stopped you at her door. She enquired as to what you have done to her daughter as she cried loudly. You said you lied to her by telling her that you walked on her body when you went into her house because you did not see the little girl sleeping near the door.

A short medical report by Johnas T.L. of Kitow dispensary, Tanna, certified that from Friday 2 January 2004, Victim sustained a minor injury (red skin) in the area of her left major inner thigh of her body which unabled Victim to walk around properly or normally for five (5) days. Other part of Victim’s body are normal.

As it transpired the facts as alleged, are all admitted by the Accused, Song Sam.

The relevant Provisions of the Law.

Sections 28, 90 and 91 are the relevant Sections of the Penal Code Act [CAP 135].

Section 28 of the Penal Code Act provides:

“28(1) An attempt to commit a criminal offence is committed if any act is done or committed 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 notwithstanding that that 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.”

Section 91 of the Penal Code, says:

“91. No person shall commit rape.

Penalty: Imprisonment for life.”

Rape is defined under Section 90 of the Penal Code as follows:

“90. Any person who has sexual intercourse with a woman or a girl without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representation as to the nature of the act, or, in the case of a married woman by impersonating her husband, commits the offence of rape. The offence is complete upon penetration.”

An offence of attempted rape is an offence the essential elements of which are described or defined under Section 90 of the Penal Code and occurring under the circumstances described in Section 28 (1) (2) of the Penal Code.

The facts as admitted are as follows:

1. The Accused intended to have sexual intercourse with the little girl when he entered her house and went into her bedroom.
   
2. The Accused removed the Victim’s panty of 4 years of age.
   
3. He spat on the Victim’s vagina.
   
4. He take out his penis and tried to penetrate the vagina of the Victim. The accused did this by saying “ gliss gliss nomo” because the Victim’s vagina is too small.
   
5. The action or movement of “gliss/gliss” as he called it, constituted frictions on the tender body of the 4 year old girl and caused injury on her left major inner thigh of her body. She was unable to walk properly or normally for 5 days.
   

The facts as summarized above from 1 to 5 reflect the situation of an attempt to commit a criminal offence as set out under Section 28(1) and (2) of the Penal Code. The facts as alleged and admitted by the accused are the type of offence as defined under Section 90 of the Penal Code. The facts and circumstances of this incident reflect an attempt rape situation.

Section 28(4) provides that an attempt offence shall constitute an offence punishable in the same manner as the offence concerned.

The offence in this case is rape. The maximum penalty for rape as mentioned earlier, is life imprisonment. The maximum penalty for an offence of attempt rape must be life imprisonment.

The principle of law applied to rape offences are applied to attempted rape offences. The general guideline are set out in PP –V- Ali August [2000] VUSC 73; Criminal Case No.14 of 2000 and confirmed by the Court of Appeal in PP –V- Maslea Scott [2002] VUCA 20; Criminal Case No. 2 of 2002.

The offence of rape or attempted rape is always a serious crime. Other than in wholly exceptional circumstance, rape or attempted rape calls for an immediate custodial sentence.

Submissions on mitigations are made before the Court by your counsel. The Court is informed that you are a young man of 17 years of age. You are a first time offender. You cooperate with the Police authorities to admit the allegations made against you. You pleaded guilty on the first opportunity offered to you. You performed custom ceremony to the Victim, the mother and the family of the Victim. You feel remorseful and apologize for what you have done as you realize that it is wrong. You say sorry for it. The Court takes all that into consideration when the Court considers your sentence.

However, the mitigating features cannot out weigh the following aggravating features:

1. The Victim is a child girl of only 4 years old.
   
2. You attack the victim while she was asleep.
   
3. The victim was vulnerable because of her young age and her unconsciousness state (deep sleep).
   
4. You are a relative to the victim and you breach the position of trust placed upon you.
   
5. The little girl suffered injury on her body unabling her to walk properly or normally like any child of her age for 5 days.
   

I must remind you of the following statement:

“Men must learn that they cannot obtain sexual gratification at the expense of the weak and the vulnerable. What occurred is a tragedy of all men. Men who take advantage sexually of young people forfeit the right to remain in the Community.” (Court of Appeal, in Keven Gideon, [2002] VUCA 7; Criminal Appeal Case No. 03 of 2003).

The circumstances of this case warrant a custodial sentence for the following reasons:

Firstly, to mark the gravity of the offence. Secondly, to emphasize public disapproval. Thirdly, to serve as a warning to others who will intend to commit similar type of offence. Fourthly, to punish you, Song Sam for the very serious offence you have committed. The last but not least is to protect the child girl and woman.

The next question is the length of the sentence. It will depend on the circumstances of each case. Section 28(5) of the Penal Code does not and could not be applied to the present case.

The appropriate sentence for this type of case would be a sentence of imprisonment for 4 years. One third of that term of sentence will be deducted for your guilty plea.

You have already spent 4 months in custody. This will be deducted in your favour.

You are now convicted of the offence of attempt rape and you are sentenced to 2 years and 8 months imprisonment.

The sentence of imprisonment of 2 years and 8 months is to be served with immediate effect.

14 days to appeal.

DATED at Isangel, Tanna this 25^th day of May 2004.

BY THE COURT

Vincent LUNABEK
Chief Justice