Public Prosecutor v Pakoa [2005] VUSC 59; Criminal Case No 030 of 2004 (8 April 2005)

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

Criminal Case No. 30 of 2004

PUBLIC PROSECUTOR

-v-

RAUL PAKOA

Coram: Mr. Justice H. Bulu

Mr. Lent Tevi for the Public Prosecutor
Mr. Christopher Tavoa for the Defendant

Hearing Date: 17 March 2005
Judgment Date: 8th April 2005

SENTENCE

Introduction

On 2 September 2004 the Defendant was charged with two counts of rape against sections 90 and 91 of the Penal Code Act.

On 7th of September 2004 the Defendant pleaded guilty to both counts of rape. On 26th June 2004 he raped Maina Marcel by means of false pretences. Again on 27th June 2004 he raped Anita Tamol by means of false pretences.

You were let off on bail that day. However, while on bail you re-offended and as a consequence you were remanded in custody on 20 December 2004 to await sentencing.

FACTS

Incident 1

On 26 June 2004 about 10 a.m. you went to see your mother inlaw, victim 1 at her home in Mafilau village, Epi. She was very sick at that time. You told her that the cause of her sickness is custom, and that you must give her custom medicine.

At that time victim 1 was alone at home. You told her that if she does not take the custom medicine that she would not live till the following year. You told her that her husband should give her the custom medicine. She told you that she has no husband or another man in her life and that you should give her the custom medicine.

On obtaining her consent you gave her the custom medicine. You then asked her to remove her shirt and to lie down. Victim 1 still had her skirt on. You then rubbed the medicine all over her body including on her vagina. You then proceeded to have sexual intercourse with her. She tried to stop you as she is your mother in-law but you told her that you cannot stop because the disease is very strong. After the incident you told victim 1 not to be ashamed of what had happened and that she must not try to see you again.

Victim 1 felt bad about the incident but was very scared to report the matter.

Incident 2

The next victim who I will refer to as “victim 2” is your sister in-law. At that time of the incident of rape she was 16 years old and a virgin.

In the morning of 27 June 2004 she did not attend church service as she had a stomach ache. She remained at home while other members of the family attended church.

On learning about the stomach ache you asked her if you could give her custom medicine to cure the ache. Victim 2 consented and you proceeded to apply the medicine. You lead the victim into the kitchen, closed the door and told her to lie down. She complied with your instructions. She moved her shirt up to her chest and you started to rub the leaf on her stomach. Victim 2 was lying quietly as she believed everything was okay. As you moved downwards and rubbed the leaf on her vagina she pushed your hand away and asked if that is the way the leaf medicine is applied. You responded affirmatively. You told her that is how it is done and that is how it was performed on her mother. Victim 2 as a result of that assurance she kept still and you continued to rub the leaf on her vagina. While doing so you told her that “mi mekem olsem from sapos wan man ispoilem small panty blong you inside long you ino save sting”.

The process was repeated in the evening when everyone had gone to church. This time round you had sexual intercourse with victim 2. You started by moving her skirt up to her stomach and squeezed the medicine onto her vagina. After you had done that you moved closer and spread her legs apart. Victim 2 tried to push you away as she guessed that you wanted to have sex with her, but you held firmly to her legs. On realizing that your trousers was around your legs she shouted for help but nobody heard her. She continued to struggle to get away from you but you held her tightly. You kept on trying to penetrate her but it was impossible as she did not keep still. You then told her “leaf ia iolsem nao, mi mas pushum igo inside sapos no bae ol maket (worm) ikamkam aot long private part blong you.” As you were saying this and holding the victim’s attention, you penetrated her and had sex with her. She was in pain and asked you to stop but you ignored her and continued to your satisfaction.

After the incident you left. However, victim 2 was in great pain and could not get up immediately.

THE LAW

Penal Code Act [CAP. 135]

Section 90 provides:-

“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 of 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; or
  

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

Section 91 provides:-

“No person shall commit rape. Penalty: imprisonment for life.”

The guideline judgment for offences of rape is found in the case of PP –v- Maslea Scott and Jeremiah Tula [2002] VUCA 20 which confirmed the guidelines established in PP –v- Ali August Criminal Case No. 14 of 2000; [2000] VUSC 73.

The following aggravating features are present in this case:-

(a) false representation to cure victim 1 of her illness with custom medicine and the proper application of the medicine is complete on having intercourse with her;

(b) False representation to cure victim 2 of her stomach ache with custom medicine and that the proper application of the medicine is complete on having sexual intercourse with her;

(c) Use of force to pin down victim 2 to be able to penetrate her and have sexual intercourse with her.

You agree, through counsel, that rape is a very serious offence.

You are only 26 years of age and married with one daughter aged 4 years old. You are a first time offender. You have come to Court with no prior criminal history.

You have pleaded guilty to the offence of rape and at the first opportunity made available to you. You are remorseful and sorry for what happened. By your guilty plea you have spared the victims from the traumas of a defended hearing.

On 30 July 2004 you performed custom ceremony at Mafilau village, Epi to show how sorry you are for what happened. Five mats, 2 pigs, food, 1 bag of kava and VT5,000 were given to the victims and their families. At the ceremony you said with deep remorse how sorry you are for the incidents to the victims and their families and to the community of Mafilau village. The victims' families accepted the custom ceremonies.

On 16 October 2004 in Port Vila you performed another custom settlement ceremony to the victims’ families living in Vila. In that custom settlement ceremony 8 mats, VT8,000, 1 cow at VT15,000, calicos and a pig killed at the ceremony were exchanged.

Counsel on your behalf have submitted that due to customary settlement ceremonies that have taken place between the families affected by your actions that you must receive the benefit of section 119 of the Criminal Procedure Code Act [CAP. 135].

In applying the guideline judgment to this case, following are the aggravating features that I must consider:-

(a) by false representation to cure victim 1 of her illness with custom medicine you gained her consent to have sexual intercourse with her.

(b) by false representation to cure victim 2 of her stomach ache by application of your custom medicine inside her vagina, you had sexual intercourse with her.

(c) by using force coupled with false representation to penetrate victim you had sexual intercourse with her.

On 26 June 2004 you raped victim 1. Next day the 27th of June 2004 you raped victim 2. It was not a one off incident of rape. The proper starting point in my view is 5 years.

The circumstances of this case warrants that the starting point of 5 years must be increased substantially to reflect the aggravating features you applied to achieve your objectives on each occasion, which is your sexual pleasure at the expense of the two victims. The increase is up to 10 years.

I now consider the mitigating features.

You pleaded guilty at the first opportunity given to you. One third is taken off.

You performed custom settlement ceremonies to families on Epi and Port Vila on two separate occasions to say that you were sorry for what happened. Such custom ceremonies reflects the societies value to compensate the wrongs inflicted on the victim and her families and for peace and order to be maintained within the community.

The chiefs and members of the community in which the victim is a part took part in the custom settlement ceremonies. The importance of the value of such a ceremony is reflected in section 119 of the Criminal Procedure Code Act. That section requires the Court to take into account such custom settlement ceremonies to determine the quantum of sentence.

In the circumstances of this particular case I consider that 1/3 is to be further taken off.

Four months eleven days is taken off for the period you have been in custody awaiting sentence.

Mr. Raul Pakoa, I sentence you to a term of imprisonment of 4 years 1 month 11 days on the first count.

And I sentence you to a term of imprisonment of 4 years 1 month 11 days on the second count.

As you have been charged with two separate counts of rape on two different women, the sentences are to be served consecutively. In total the imprisonment term is 8 years 2 months 22 days.

DATED at Port Vila, this 8th day of April 2005.

H. BULU
Judge.