Public Prosecutor v Peter [2006] VUSC 27; CRC 023 2004 (17 March 2006)

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

Criminal Case No.23 of 2004

PUBLIC PROSECUTOR

-V-

ANDY PETER

Coram: Justice H. Bulu

Counsels: Mr. John Timakata and Mr. Abel Kalmet for Public Prosecutor
Mr. Ronald Warsal and Mr. Gideon Avock for the Defendant

Hearing Date: 9 February 2006
Judgment Date: 17 March 2006

SENTENCE

INTRODUCTION

History of trying to fix a date for sentencing

1. On 2 July 2004 the Defendant was charged with one count of rape and one count of sexual intercourse with a girl under care and protection.
   
2. On 20 July 2004 the Magistrate Court in Port Vila found that a prima facie case is disclosed. The Court authorized the laying of information against the defendant and committed him to the Supreme Court for trial on information.
   
3. On 3 August 2004 the defendant pleaded "not guilty" to both counts. Trial was set down to commence at 9.00 a.m. on 11 October 2004. The defendant was granted bail on same conditions imposed by the Magistrate Court.
   
4. On 11th October 2004 trial was adjourned to 13 October 2004 as a result of discussions between Prosecutions and Defence counsel. Bail was extended to 13 October 2004.
   
5. On 13 October 2004 Prosecutions amended the charges laid against the Defendant. The charge of rape in count 1 was withdrawn. The only charge remaining was that of sexual intercourse with girl under care and protection.
   
6. The Defendant then changed his plea of "not guilty" to "guilty".
   
7. Directions were issued:-
   
   • (a) Requiring both parties to file and serve their submissions on sentence and mitigation by 4.30 p.m. on 14 October 2004.
     
   • (b) For the hearing on sentencing to commence at 9.00 a.m. on 15 October 2004.
     
8. By 15 October both parties had fail to comply with directions 1 of 13 October 2004. Sentencing was stood down to commence at 9.00 a.m. on 15th December 2004.
   
9. Written Submissions of the Prosecutions was filed on 9th November 2005 pursuant to Direction 1 of 13 October 2005.
   
10. On 15th December 2005 Prosecutions advised the Court Registry of the unavailability of defence counsel. Prosecutions would consent to another date for sentencing. As a consequence fresh direction was issued by the Court that "Sentencing is at 3.00 p.m. on 1st February 2005."
    
11. On 1st February 2005 both counsels were in Court. However, defence counsel informed the Court that he was not ready for proceedings on sentencing on that day. New directions were issued for sentencing to be "at 4.00 p.m. on 14 March 2005". Counsels agreed this date with the Court.
    
12. On 14 March 2005 defence counsel failed to show up in Court. No notification was received by the Court for his absence when on 1st February 2005 he was in Court and agreed the date and time. Direction 1 of 13 October 2004 is yet to be complied with by defence counsel. New directions were issued by the Court as follows:-
    

"(1) Defendant to file written submissions on sentencing within 7 days.

(2) Sentencing will be at 5.00 p.m. on 24 March 2005."

13. On 24 March 2005 counsel for the Defendant failed to make an appearance. Directions re-issued on 14 March have also not been complied with.
    
14. There was no communications at all with the Court as to the reasons for non-attendance that day. New directions were issued by the Court as follows:-
    

"(1) Sentencing will now be at 5.00 p.m. on Friday 1st April 2005.

(2) Ronald Warsal, counsel for the defendant must comply with the Direction Order of 24 March 2005 by 4.30 p.m. on 31st March 2005."

15. On 1 April 2005 counsel for the defendant could not attend. The Court received a letter from Mr. Warsal advising the Court that he was unable to attend. The reason advanced was that he had "attended Court this morning on other matter and has been feeling unwell since. We have yet to prepare the Defendant’s (Accused) submissions as yet. Given the circumstances, we request that the matter be adjourned to Friday April 8, 2005 and that we prepare our submissions on sentence as well."
    
16. A conference was set for 4.00 p.m. on 5th April instead with the hope, that Mr. Warsal will attend and another suitable date can be fixed for sentencing. The 8th of April as proposed by Mr. Warsal was not convenient to the Court.
    
17. On 5th April 2005, Mr. Warsal did not show any appearance. No notice was received by the Court explaining his failure to attend. Sentencing was then fixed for 4.00 p.m. on 21 April 2005.
    
18. On 21 April 2005, the Public Prosecutor appeared in person as John Timakata who had had carriage of the matter until then had left the office. Mr. Warsal however, did not show up. No reasons were sent to the Court for his non-attendance. Matter was then listed for 8.00 a.m. on 10th May 2005.
    
19. On the 10th of May the hearing was vacated at the initiative of the Court. The Registry issued notice for a conference on 26 May 2005 at 9.00 a.m.
    
20. On 26 May 2005 no one showed up in Court. No reasons were given. Another conference was set down for 2.00 p.m. on 14 June 2005.
    
21. On 14 June Mr. Warsal did not show up. No reasons were submitted to Court. Matter was set down for conference at 9.00 a.m. on 17 June 2005.
    
22. On 17 June, Ronald Warsal was not ready for sentencing. Matter was set down for sentencing at 2.00 p.m. on 28 June 2005.
    
23. On 28 June, Court was unable to sit.
    
24. Matter was next listed for 7 December 2005 at 8.30 a.m. Court was unable to sit at that time.
    
25. Matter was listed for sentencing at 4.00 p.m. on 6 February 2006. On that date Mr. Warsal submitted that he had just received an Amended Submission on sentence and they needed time to respond. Further that another officer in their firm has taken over the carriage of that matter. Sentencing was listed for 5.00 p.m. on 9th February 2006.
    
26. On 9th February 2006 the Court heard Mr. Kalmet on behalf of the Public Prosecutor and Mr. Avock who had taken over from Warsal, on behalf of the Defendant.
    

FACTS

27. The victim on the date of the incident was 16 years old and lived with the defendant whom she called "uncle". She had been living with the defendant for about two to three months when the incident occurred. She had gone to live with the defendant and his family after being invited by his wife (victim’s aunty). The invitation was made on the basis that they were closer to the school the victim was attending and hense she would save on bus fares and further to help her aunty with housework. The victim calls the defendant uncle because the defendant’s wife is her father's sister.
    
28. On 5th June 2004 sometime in the afternoon, the defendant raped the victim. It happened at home. The victim had gone out in the morning to visit her cousin sisters at Manples area.
    
29. On returning home about one o’clock in the afternoon she saw her uncle asleep on a bed in the sitting room. She entered another bedroom in which she uses and went to sleep. She woke up some time after when the defendant woke her up to find out where his wife and the children were. Upon told where they had gone to, he left. He showed up again and wanted to use the victim’s pens, if any. On being given one he left. When he showed up again in the bedroom he demanded that he have sexual intercourse with the victim.
    
30. The victim refused. However, by force he lifted her from the bed she was sleeping on. But she managed to free herself. He then held her tightly and told her in strong words to keep quite, and not to shout.
    
31. He next put both hands round her waist and locked her hands against her body. She could not release them. She also could not escape. He pushed her against the table in the living room, and then forcibly removed her clothing. He then lifted the victim and sat her on the table and had sexual intercourse with her against her will. She felt pain in her vagina and struggled to get away. She did manage to break his hold and run into the bedroom. The incident took about 5 minutes.
    

LAW: Penal Code Act

32. "Sexual Intercourse with girl under care or protection
    
    96. (1) No male person shall have or attempt to have sexual intercourse with any girl, not being his wife, who is under the age of 20 years and who –
        
        • (a) being his stepdaughter, foster daughter, or ward, is at the time of the intercourse or attempted intercourse living with him as a member of his family;
          
        • (b) not being his stepdaughter, foster daughter, or ward, and not being a person living with him as his wife, is at the time of the intercourse or attempted intercourse living with him as a member of his family and is under his care and protection.
          

Penalty: Imprisonment for 10 years.

(2) It is no defence to a charge under this section that the girl consented."

SUBMISSION BY PROSECUTIONS

33. The Prosecutions submitted that the victim was 16 years of age at the time of the offending. The defendant is her uncle and was 29 years old at that time.
    
34. The defendant had forcefully had sexual intercourse with the victim on or about 5th June 2004 inside the family home. At that time of the offending:-
    
    • (a) The victim was under the care and protection of her uncle, the defendant and her aunty. She had left her natural family home on Lelepa, North Efate to come to Vila to live with her uncle and aunt in order to attend school in Vila.
      
    • (b) The victim was alone at home. Her aunt and other family members had gone out.
      
    • (c) The defendant was not intoxicated at that time.
      
    • (d) The victim was grabbed from the bed. She tried to run away into the living room, the defendant caught her and held her tightly around the waist and forcefully took off her trousers and panty.
      
    • (e) She could not move. He spoke angrily to her not to call out. He then had sexual intercourse with the victim against her will. The victim was in severe pain.
      
    • (f) The victim managed to free herself and ran to another room thereafter.
      
    • (g) As a result of the actions of the defendant the victim left the home and sought refuge with her relatives at Manples and then returned to Lelepa after that.
      
    • (h) The victim later lodged a formal complaint against the defendant to the police.
      
    • (i) The defendant volunteered a statement of admission to the police saying that after incident he gave the victim VT1,000 as an apology and told the victim not to report the matter to his wife.
      
    • (j) He had also told the victim that he had wanted to have sex with her for some time and wanted to have a continuous relationship with her thereafter.
      
35. Prosecutions continued that this is a serious offence under section 96 of the Penal Code Act. Section 96 imposes a maximum penalty of 10 years imprisonment on any person who has sexual intercourse with a child under his care or protection who is under the age of 18 years. This provision reflects society’s conscience through its disapproval of sexual offending or preying on the weak, vulnerable and dependant members of the families and communities.
    
36. Children must be safe in their home. All children are entitled to be protected by adults especially their parents or those in the position of parental authority over them.
    
37. The result of the actions carried out by the defendant in this case clearly illustrates a total annihilation of the sanctity of the family and its values of love, care, protection and especially trust. This is evident by his actions to satisfy his sexual urge when obtaining sexual gratification from the vulnerable child, his young niece, which has destroyed the trust that may have existed before the incident.
    

AGGRAVATING FEATURES

38. Prosecution submitted that there are aggravating features in the circumstances of this case as follows:-
    
    • (a) breach of trust between offender and victim as the defendant was in a position of parental authority being the father and head of the household;
      
    • (b) vulnerability of the victim by virtue of her age being a young student of 16 years and still attending Tagabe Bible School of Tomorrow at Tagabe area Port Vila;
      
    • (c) offence occurred within what should have been the security of a home where the victim should have been safe;
      
    • (d) age disparity between victim and offender of 13 years as the victim was 16 years old the defendant 29 years old;
      
    • (e) force was used to achieve the objective.
      

APPROPRIATE SENTENCE

39. Prosecution submitted that an appropriate starting sentence could be 2 years to be further increased because of the aggravating factors to a balance of 4 years and be afforded the appropriate deductions for the guilty plea and other mitigating factors including customary settlement.
    
40. Prosecution submitted that mitigating factors cannot outweigh the aggravating factors present in this case, and a custodial sentence is appropriate to echo the words of the Court in Public Prosecutor v. George Dick [2004] VUSC 2; Criminal Case No. 1 of 2004 that:-
    

"... a custodial sentence is necessary for a variety of reasons. Firstly to mark the gravity of the offence, secondly to emphasize public disapproval. Thirdly to serve as a warning to other. Fourthly to punish the offender. Finally to protect the children and in this case the child girl."

41. Finally a suspended sentence is submitted would not be warranted in this case as it does not fall within the "most extreme of cases" to allow such a discretionary measure, taking into account the circumstances of the offending as highlighted above.
    

SUBMISSION BY THE DEFENCE

42. Mr. Avock on behalf of the defendant submitted that the circumstances of this case is different to cases cited by the Public Prosecutor, namely Public Prosecutor v. Willie Atis [2004] VUCA 4; Criminal Appeal Case No. 2 of 2004, Public Prosecutor v. Gratien Bae [2003] VUCA 14; Criminal Appeal Case No. 3 of 2003, Public Prosecutor v. Kevin Gideon [2002] VUCA 7; Criminal Appeal Case No. 3 of 2001, Peter Talivo v. Public Prosecutor [1996] VUCA 2; Criminal Appeal Case No. 2 of 1996 and Public Prosecutor v. Petro Bulemis [2005] VUSC 16; Criminal Case No. 4 of 2005. In those cases the offending had occurred on more than one occasion and/or followed by a threat to kill the victim if she were to talk to another person about what happened.
    
43. In the present case, the offending occurred once only. And there was no threat of violence or killing of the victim if she talked. The defendant, after the incident, had told the victim "yu no mas letem any man isave mo mbai yu no mas talem long Ruth". Mr. Avock stated that there was no threat in that statement.
    
44. The circumstances of this case is an exceptional one bearing in mind the defendant’s good record with the police and the fact that he has been offered a place to further his career in New Zealand.
    

MITIGATING FEATURES

45. After the incident the defendant realized that he had done something that was wrong and gave the victim VT1,000 and said sorry to her.
    
46. The defendant is a first time offender.
    
47. The defendant pleaded guilty to the charge of sexual intercourse with girl under care and protection. He had cooperated with the Police.
    
48. On 10 October 2004, the defendant apologized to the victim’s families and the victim and performed a reconciliation in a custom ceremony. During that ceremony the following were exchanged:-
    
    • (a) a pig valued at VT15,000;
    • (b) VT5,000;
    • (c) 2 mats;
    • (d) 2 island dress;
    • (e) some food.
      
49. After the custom reconciliation, the defendant, the victim and a chief have signed a letter to the effect that:-
    
    • (a) that a custom reconciliation ceremony has been performed; and
      
    • (b) the Court is requested to deal with the matter "mo mekem family mo pikinini blong accused oli happy bakeken olsem bifo".
      
50. Mr. Avock continued that the defendant had experienced shame and rebuke from the members of the family and had vowed that he had learned from the wrong he had done.
    

APPROPRIATE SENTENCE

51. The defendant has a good record within the Force and he has been offered a position at an institution in New Zealand to further his employment. He is the main income earner of the family. The circumstances of this case is an exceptional one and considering the mitigating features Mr. Avock submitted that the appropriate sentence in the circumstances of this case is a suspended sentence.
    

DISCUSSION

52. The Defendant has pleaded guilty to the charge of having sexual intercourse with girl under care or protection.
    
53. There is an aspect of this case that makes it stand out from the other cases of sexual nature cited by both the Prosecutions and the Defence counsel in this proceeding. The defendants in those cases are not law enforcement officers.
    
54. In this case, the defendant is a member of the Vanuatu Police Force. Section 4 of the Police Act says that it is an "essential duty of the Force to maintain an unceasing vigilance for the prevention and suppression of crime." A member of the Force is employed to enforce the laws of this nation. Not to breach them.
    
55. The defendant, it is submitted, is employed specifically as a band member in the Police Band. That may be so but, it does not take away or lessen the fact that he was employed under the Police Act as a Police Officer first and then assigned as a member of the Band.
    
56. As a Police Officer, he has a duty to ensure that laws are respected, that no one breaches the law. It is more so for him, a higher calling to ensure that he respects the laws and upholds them. But not to break them.
    
57. The incident of sexual intercourse with the victim who was under his care occurred on one occasion only. However, the fact that he is a police officer, a member of the Police Force whose duty is to prevent and suppress crime, makes the matter even more serious, in my view. Firstly, he breaches the confidence and trust the victim had in him as someone who was going to take good care of her. Secondly, he breaches the duty the Police Act imposed on him as a police officer to uphold the laws of this land.
    
58. In the circumstances of this case, what is the appropriate sentence. I have taken into account aggravating features and the mitigating features and in my view a custodial sentence would be the appropriate sentence. 2 years would be the starting point and increased substantially due to the aggravating features to 5. ⅓ is taken off for the guilty plea. Another ⅓ is taken off for the customary reconciliation and other mitigating factors. I sentence you to 2 years 2 months and 13 days imprisonment.
    
59. Should the sentence be suspended. I have considered the reasons submitted by counsel on behalf of the defendant but do not agree that those reasons amount to an exceptional circumstance or a most extreme case.
    
60. Sexual abuse in the sanctity of the home is a very cruel thing on the victim. Its adverse effects on the young victim is hard to tell. Mr. Peter, you are a member of the Police Force, albeit VMF Band member. As such the public and the victim in this case, look up to you for protection. The last thing expected of you is the breaching of that duty and hence the trust in you and the institution you represent. The victim calls you uncle for a very good and special reason. You have breached the trust and damaged that special relationship.
    
61. For the above reasons, my view is that a custodial sentence would be the appropriate sentence. Mr. Peter, it is my sad duty today to sentence you to a term of imprisonment of 2 years, 2 months and 13 days.
    
62. You have 14 days to appeal this decision.
    

DATED at Port Vila, this 17th day of March 2006.

H. BULU
Judge.