Public Prosecutor v Langbell [2005] VUSC 9; Criminal Case 003 of 2005 (3 March 2005)

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

CRIMINAL CASE No. 03 of 2005

PUBLIC PROSECUTOR

-v-

ALICK LANGBELL

Coram: Chief Justice Vincent Lunabek

Counsel: Ms Kayleen Tavoa for the Public Prosecutor
Mr. Chris Tavoa for the Defendant

SENTENCE

This is the sentence of the defendant Alick Langbel. The Defendant was charged with the offence of Unlawful Sexual Intercourse, Contrary to section 97 (2) and Rape contrary to section 91 of the Penal Code Act [CAP. 135].

He made confessional statement to the Police during his interview at the Police station and he pleaded guilty as charged on the first opportunity available to him saving time and costs for everyone involved and most particularly to save the complainant girl to talk about the ordeal she went through in the Court.

Section 97 (2) of the Penal Code Act [CAP 135] provides as follows:

“No person shall have sexual intercourse with any child under the age of 15 years but of or over the age of 13 years.

Penalty: Imprisonment for 5 years.”

Section 91 provides as follows:

“No person shall commit rape.

Penalty: Imprisonment for life.”

These are very serious offences charged against a person under the Penal Code Act, which carries a maximum penalty of life imprisonment.

The brief facts are as follows:

• The Defendant is 17 years old and resides with his mother at Nambatu and with his father sometimes at Tamanu Resort.
  
• The Defendant is currently doing year 11 at Sorovanga Secondary School.
  
• On or about Christmas holiday last year 2004, during school holidays, the Defendant went to live with his father at Tamanu Resort. The Defendant at the time of the offence was doing his holiday job with Tamanu Beach Resort.
  
• On or about 1^st of January 2005, the complainant was left alone with her grandmother and the baby at their home near Tamanu Resort.
  
• The Defendant on the 1 of January 2004 came and called the Complainant to go and see him. The Defendant inquired about the family members of which the Complainant responses and said that she was alone with her grandmother and the baby.
  
• The Defendant asked the Complainant to follow him to the Sea. The Complainant refuses to follow him. However the Defendant continually forces her to follow him of which she finally did.
  
• The Defendant demanded the victim to have sex with her, however she refuses and told the Defendant that she doesn’t want to.
  
• The Defendant pushes her to the ground removing her clothes and then pulled of his trousers and sleep on top of her. The Defendant then had sex with her.
  
• The Victim Vagina was so painful during sexual intercourse. She tries to resist but could not push off the Defendant.
  
• The Police interview the Defendant and he admitted that he had sex with the complainant and is very remorseful for his wrongdoing.
  
• The Defendant by his family has performed custom ceremony on 7^th of February 2005 and a letter detailing the ceremony was tendered to the Court. The Court is asked to consider this letter for the purpose of section 119 of the Criminal Procedure Code act [CAP. 136]. This will be taken into account in his favour.
  

The prosecution says the offences are very serious offences committed by a young offender of 17 years of age at the time of the offending.

The Prosecution relies on the Court of Appeal Judgement in PP -v- Gideon, [2002] VUCA 7 Criminal Appeal Case No. 3 of 2001 and the following aggravating features were outlined:

1. The age of the victim;

2. Uses of Force to commit rape;

3. Rape carefully planned;

The Defendant is contrite and very remorseful for this offence.

The Defendant was cooperative with the police and entered a guilty plea at the first instance to spare this young victim of giving evidence before the Court. He is a first time offender and has no previous convictions. This will be taken into account in his sentencing

The defence also submitted that the facts and circumstances surrounding this case are distinguishable from those matters contained in Court of Appeal Judgement in PP -v- Gideon, [2002] VUCA 7 Criminal Appeal Case No. 3 of 2001. They are set out as follows: -

• The Defendant committed the offence aged 17 whilst Gideon was aged 25.
  
• There is no breach of trust between Defendant and Victim as in Gideon.
  
• The Defendant unlike Gideon did not prey on the victim within her own home.
  
• The physical damage that the Victim sustained was not very serious as in Gideon whereas in Gideon the Victim loses too much blood and got hospitalised.
  

However, the following statement made by the Court of Appeal in PP -v- Gideon [2002] VUCA 7 remains the principle authority in sexual offences:

“Men must learn that they cannot obtain sexual gratification at the expense of the weak and the vulnerable. What occurred is a tragedy for all involved and men who take advantage sexually of young people forfeit the right to remain in the community.”

This statement is not only true for men but also for the offences perpetrated by young adolescent male offenders. Each case must be assessed on the basis of its factual circumstance and in the light of the guideline judgment.

In this case, the facts and surrounding circumstances call for custodial sentence. The custodial sentence is necessary for a variety of reasons:-

• First, to mark the gravity of the offence
  
• Second, to emphasize and mark public disapproval
  
• Third, to serve as a warning to others
  
• Fourth, to punish the offender
  
• The last but not the least is, to protect the women and the girls.
  

The starting point for the sentence of the Defendant for the offence of rape, contrary to Section 91 of the Penal Code, is 4 years. This sentence is to be increased to 5 years imprisonment in reflecting the aggravating features. I sentence the Defendant for 2 years imprisonment for the offence charged under Section 97(2) of the Penal Code Act. The Defendant, Alick Langbell, is to serve the sentences of 5 years and 2 years concurrently. This means that he will serve only a sentence of 5 years imprisonment.

The sentence of 5 years is to be considered in the light of the mitigating factors. This sentence of 5 years is to be reduced by 24 months to reflect the guilty plea. The balance of the sentence of imprisonment is 3 years. I will reduce the balance of sentence by 12 months to reflect the custom ceremony done by the Defendant under custom in accordance with section 199 of the CPC Act [CAP. 136].

The outstanding balance is 2 years.

The Defendant is hereby sentenced to 2 years imprisonment.

I consider your young age and your schooling and I suspend your sentence of 2 years for a period of 2 years.

I explain to the Defendant, ALick Langbell, the meaning of the suspension of his 2 years imprisonment for a period of 2 years in accordance with the relevant provisions of the suspension of the sentence Act [CAP. 67]. The Defendant understands and if he re-offends before the expiry of 2 years from the date of his sentence, he will be charged for his new offending and dealt with according to law and his suspended sentence of 2 years imprisonment be re-activated.

The Defendant has 14 days to appeal.

DATED at Port-Vila this 3^rd day of March 2005

BY THE COURT

Vincent LUNABEK
Chief Justice