Public Prosecutor v Armstrong [2004] VUSC 80; Criminal Case 045 of 2003 (28 January 2004)

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

Criminal Case No. 45 of 2003.

PUBLIC PROSECUTOR

-v-

NEIL ARMSTRONG

Coram: Justice Hamlison Bulu

John Stephens for the Public Prosecutor
Mr. Bartels for the Defendant

SENTENCE

Mr. Armstrong you appear for sentence today on a charge of incest and a charge of intentional assault. A charge of incest carries a maximum term of imprisonment of 10 years. A charge of intentional assault that causes damage of a temporary nature carries a maximum term of 1 year.

Mr. Armstrong you have pleaded guilty to both charges. For the sake of completeness, the first charge of incest reads:-

“Incest – Agensem section 95 Penal Code Act Cap 135.

Neil Amstrong yu blong Efate long Saama village mo yu stap liv long Saama village nomo. Samtaem start long manis July 2002 long ol different dates yu bin minim blong stap havem sexual intercourse wetem woman ia Violet Menmen we hemi stret sister blong yu.”

The second charge of Intentional Assault reads:-

“Intentional Assault – Agensem section 107 (b) Penal Code Act Cap 135.

Neil Armstrong samtaem long manis July 2002 long ol different dates you bin stap minim blong kilim nogud woman ia Violet Menmen wetem wan electric rope mekem se hemi stap kasem kill long bodi blong hem.”

FACTS

The victim is 21 years old and is your sister. You both come from the same biological father and mother. Before the commission of the offences the victim lived with your parents on Maewo. You lived in Saama Village, Efate with your wife. In December 2000 you took your family to Maewo for Christmas holidays with the other family members who live there.

Sometime in January or February you returned to Efate. The victim returned with you and lived home with you. The home had three bedrooms in which you, your wife and children shared one bedroom, the victim shared one and the third one was unused.

Sometime in July, on a Friday, your wife left the home early in the morning to come to Port Vila to sell products from your gardens at the Market. Your wife remained in Vila until she returned home on Saturday, the next day. During your wife’s absence on the Friday night you entered the victims room and had sexual intercourse with her. At that time she had retired to the room allocated to her and was getting ready for bed. She was still sitting on the bed when you walked in and sat on the bed with her. There were no lights and a curtain was used to close off the bedroom from the other rooms. There was no proper door that can be closed and locked.

When the victim saw you enter and sat down on the bed next to her she was surprise and asked you “You stap mekem wanem ia?”

You answered your sister “You karem aot clothes blong yu”. The victim, your sister was frightened and could not believe what she was hearing. She further asked you in terms to the following effect “what are you going to do with me?”

You answered her to the effect that “I will have sexual intercourse with you”. After saying words to that effect you began to undress her and forced her down on the bed. She tried to push you away but you held her firmly by her shoulders so that she could not move. You were completely naked then and had sexual intercourse with your own sister.

On Thursday of the following week you went to the garden with the victim to collect food to put together in preparation for your wife to take them to the Market in Vila on Friday. When you got to the garden you again had sexual intercourse with the victim.

After the first two occasions you continued to have sexual intercourse on many other occasions. Sometimes in the garden and a few times in the house. When you were having sexual intercourse with the victim in the garden you told her not to tell your wife about what was taking place between yourselves.

In May 2003 the victim missed her menstruation and informed you. You told her not to say that it is your baby, but to say that it is some one else’s baby.

On the 7^th day of July 2003 you again had sexual intercourse with the victim before you brought her to Vila to go back to Maewo.

During the time that your sister came to stay with you at Saama Village, you repeatedly beat her with a black electric rope “taem hemi stap ko wokbaot albaot”. On one such occasion you caused damage of a temporary nature on the victim.

On her return to Maewo on 12^th July 2003 the victim reported the matter to one of your sisters and her husband and eventually to the Police.

You admitted the allegations when the Police interviewed you on 10^th October 2003. You admitted that you first had sexual intercourse with your sister sometime in July 2002 and at your home. Then on another occasion in the garden. You also admitted that after the first two occasions sexual intercourse continued on many occasions, but you could not remember the exact dates. You also stated that your sister consented to having sexual intercourse with you and that you did not force her. You further admitted to beating your sister repeatedly with a black electric rope when she went “wokbaot olbaot”.

Sexual Offences are serious offences under the Criminal laws of the land. Incest is a sexual offence that carries a maximum imprisonment term of 10 years.

Aggravating Factors

The Prosecutor on behalf of the State has urged this Court to take into account that when imposing a sentence it should not be considered on the basis that it was a one off incident. The act of sexual intercourse occurred on many occasions between yourself and the victim and that this court when considering sentencing, has to take this into account. The case of Public Prosecutor –v- Gratien Bae, [2003] VUCA 14; Criminal Appeal Case No. 3 of 2003 was cited as authority for this proposition.

Counsel on your behalf urged this court to note that you are before this court for two matters only. That you have been charged with one sexual offence only, ie, incest, and one intentional assault only. Counsel has urged this Court to disregarded references to other sexual Offences and assault offences in sentencing. That you must not be surprised, ambushed, or put to task for matters which you have not been charged.

The charge in Count 1 clearly refers to not only one incident of sexual offence but to more than one such offence. It states “...samtaem start long Manis July 2002 long ol different dates you bin minim blong stap havem sexual intercourse wetem...”

In your statement to the Police on 10^th October, 2003 you stated:-

“... First taem mi tingbaot mifala I havem sex insaed long haos blong mifala nomo... long manis July 2002. Afta long first taem ia mitufala istap havem sex fulap taem lelebet, mi no save rememba hamas taem everiwan.”

This is an admission you made that you had sexual intercourse on more than one occasion with the victim. I am assisted greatly by the Court of Appeal in the case referred to above. In the fourth paragraph on page 3 of the Judgment, the Court said:-

“It is essential that the court sentence only on the basis of actual offending which is admitted or proved... it is quite unrealistic to treat that as a one off incident by a person who had otherwise been totally blameless in his conduct. On the contrary he had admitted a course of conduct which had gone on for years in which he had used his daughter as a means of obtaining sexual gratification.“

You have admitted having sexual offences on other occasions but cannot remember how many times altogether. Submission on your behalf on this ground fails.

The Prosecutor further submits that the fact that you had pleaded guilty to the two charges laid against you and admitted to having committed the offences to the Police during the interview, could be seen as a mitigating factor in your favour, however, a custodial sentence should be the appropriate punishment to be applied in your case considering the circumstances of your case.

The prosecutor cited the case of PP –v- Gideon Mael, [1998] VUSC 92; Criminal Case No. 18 of 1998 as authority for this proposition. The accused in that case pleaded guilty to having committed incest with his daughter when she was 13 years old. The circumstances of that case is not the same as in the present case. For example the victim in that case was only a child of 13 years and was in grade 6 in school. The victim in this case at the time of the sexual offences was 21 years of age, an adult. However, an aspect which is common in both cases is that it happened within the prohibited insainguity. It happened within the family sphere where family members are most vulnerable. Why, because family members are there to support each other but not to be abused in circumstances as in the case cited and this case. It is the place where such abuse is not expected to happen. I agree with the position taken at page 2 of the judgment in Mael’s case which reads:-

“The Court must impose severe penalty in this type of cases to reflect the seriousness of the offence itself and the circumstances as to how the offence was committed and further to try and prevent such unwanted sex behaviour and that I consider a custodial sentence would be the only appropriate penalty as punishment and also a deterrence to others.”

The Prosecution submitted further that age difference between yourself and the victim also contributed to your actions. You are 30 years old and the victim is 21 years old. That in such situation the victim is vulnerable and you took advantage of the situation.

Counsel on your behalf urged this Court not to place any weight on the age difference between yourself and the victim. When persons become adults that changes, the weight shifts. That the person is not blameless. That the person is not as vulnerable as of when he or she is a child.

The victim is your sister. She came from a village on Maewo to live with you here in Saama village, on Efate. She may have been naïve and has not had the exposure of the trappings of a more robust life style on Efate. You are the man she looked up to for support and well being while in a strange place. You are her brother and as such she had complete trust in you for her well being while living in your home with your family. She had moved away from an environment where she is familiar and comfortable with to live in one which you are familiar and comfortable with and hence relied on you for her existence and well being. You took advantage of the situation. By your actions you placed her in a situation in which she became confused and frightened and had to go along with your demands for sexual gratification.

Counsel on your behalf submits that customary settlements has taken place. One in November or December 2003 and a recent one in 14^th January 2004. The earlier one was between yourself and the victim. The following were given to your father on behalf of the victim:-

• 1 head of kava valued at VT5,000
• 1 shirt valued at VT500
• 1 trousers valued at VT1,000
  

On 14^th January 2004 the following were given to your father:-

• 1 pig valued at VT30,000
• 1 head of kava valued at VT10,000
• 24 mats valued at VT12,000
• One 25Kg bag rice VT3,060
• Cash VT16,000
• 4 yards of calico VT500
• transport (Maewo – Vila) VT6,800

------------

VT78,360

These you have paid to your father. The total value of the goods paid in the custom ceremonies come to VT84,860. What is the effect of the custom ceremonies. Section 119 of the Criminal Procedure Code says that:-

“Upon the conviction of any person for a criminal offence, the Court shall, in assessing the quantum of penalty to be imposed, take account of any compensation or reparation made or due on the offender under custom and if such has not yet been determined, may, if he is satisfied that undue delay is unlikely to be thereby occasioned, postpone sentence for such purpose.”

Counsel on your behalf urges this Court to take cognizance of that section. Counsel submits that it is wrong to simply say that such custom ceremonies “simply reduces ill feelings between the parties”. Counsel argues that to do so would not take into proper account values of the community. Such customary ceremonies set in parallel what the Court do, and that is restitution, compensation, rehabilitation and education of the community. It sends a clear message that wrong doers will not go unpunished by the community.

Custom ceremonies performed during situations such as in this case, are an important and valuable aspect of the Vanuatu culture. It goes to demonstrate, punishment, sorry, restitution, compensation and peace. Section 119 recognizes the importance of such customary settlements.

It says the “Court shall ... take account of any compensation or reparation made or due by the offender under custom ...” This the Court must do to arrive at a proper level of penalty to be imposed. This is aimed at the quantum of penalty to be imposed. If the Court had considered a specific term of years or fine as the appropriate sentence to be imposed after taking into account certain factors, but not compensation or reparation made under custom, then that term or fine could be affected when taking into account such compensation or reparation. However, it will not in my view, affect the nature of the offence committed. The term that could be imposed and the nature of the offence are two distinct matters. It would seem to me that section 119 of the Criminal Procedure Code Act recognizes that distinction by referring only to the quantum of penalty that could be affected when taking due account of any compensation or reparation made or due under custom. I could not agree more with the Court of Appeal in Public Prosecutor –v- Kevin Gideon [2002] VUCA 7 when, at page 8, of the Judgment it said:-

“Section 119 is relevant to an assessment of the “quantum of sentence” and not the nature of sentence. It can influence the length of a sentence of imprisonment or the amount of a fine, but not its fundamental nature.”

Counsel on your behalf informed this Court that further customary settlements may occur between yourself and other family members. Counsel agreed that the main ceremonies are the ones that took place between yourself and the victim and yourself and your father. The Court had given sufficient time for custom ceremonies to be performed and in my view cannot delay any further but to give sentence.

Counsel on your behalf have further urged me to look at other forms of punishment to impose on you and not imprisonment. Incest is a very serious offence and a custodial sentence would be the appropriate punishment in the present circumstances.

Clearly there are aggravating features in your case. These include use of force or threat to induce sexual intercourse, and the fact that the act of incest occurred on a number of occasions not just once. The victim was clearly vulnerable due to your threats, and beating when she left the home.

There are clearly mitigating factors to take into account and balance with the aggravating ones. I take into account that you pleaded guilty, that you have no prior conviction, you are truly sorry for what happened and that you have made settlements in line with custom.

What you have committed is a serious sexual offence. It strikes at the heart of the family and the victim can be devastated for life. The victim, your sister, is now pregnant, with your baby and she will carry the burden of guilt and shame with her most likely through out her life.

It is my view that this is an offence which, in your circumstances, the appropriate penalty must be imprisonment. It is not appropriate to suspend any term of imprisonment that will be imposed.

On Count 1 you are today sentenced to 2 ½ years of imprisonment.

I now turn to Count 2. You have pleaded guilty to the charge of intentional assault that took place over a period of time commencing in July 2002. In the interview with the police you admitted that “hemi true taem ... hemi stap ko wokbaot olbaot ... mi wipim hem wetem black electric rope.”

Why you “stap wipim hem wetem black electric rope”, when she goes “wokbaot olbaot” is not clear. From your evidence and that of the victim it seems that these “wokabaot” did not meet with your approval, hence the beating.

The prosecution have submitted that the beatings you inflicted on the victim were part of your approach to force her to have sexual intercourse with her. There is nothing in the evidence to suggest this and I therefore disregard it.

No mitigating factor at all was submitted on your behalf on the charge of intentional assault causing harm of a temporary nature to the body of the victim. In your statement to the police you offer no reason at all for beating the victim when she went “wokabaot olbaot”.

On this Count you are sentenced to 4 months imprisonment but suspended for 3 years on the condition that you commit no further offence against any Act, Order, Regulation or Rule within that period.

You have the right to appeal these sentences within 14 days.

MADE at Port Vila, this 28^th day of January 2004.

H. BULU
Judge.