Public Prosecutor v Shem [2006] VUSC 7; CRC 020 2005 (27 January 2006)

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

CRIMINAL CASE No. 20 of 2005

PUBLIC PROSECUTOR

-v-

PAUL SHEM

Coram: Chief Justice Vincent Lunabek

Counsel: Mr. Lent Tevi for the Prosecution
Mr. Jacob Kausiama for the Defendant

SENTENCE

This is the sentence of the Defendant, Paul Shem. The Defendant was charged with 2 offences of Rape, Contrary to section 91 of the Penal Code Act [CAP. 135].

Both offences of Rape were committed one after the other by the Defendant on the same date: 26 January 2003 but on two (2) different women. The Defendant pleaded guilty to both charges of Rape.

The facts of this case are set out in the prosecution submission. They are conceded and accepted by the Defendant. They are set out as follows:

On 26 January 2003 at the Palms Station at Tagabe area, the Defendant approached the following girls: [the complainants]. They had a swim at Tagabe River and were walking back to their home. At that time the Defendant was holding a sharp knife and a piece of wood, and moving his bush knife and the piece of wood. Then he told the girls that he wanted [one] to remain behind and the other 3 girls can go home. At that time [she] refused to stay with him and wanted to follow the other three girls. But the Defendant stated that she will stay with him as she always tells lies to meet him. He also told her that if she followed the other girls he will spear and cut her with the knife he holds and then showed the knife to [her]. That made her so scared that she stayed behind while her 3 other friends walked back home. The Defendant and [the complainant] stayed there and talked until [her] friends could not be seen, then the Defendant told [the complainant] to follow him, but [she] refused to follow him. The Defendant then threatened to spear her with the knife. That made her followed him to a house, and then went up a hill. When they were going up the hill the Defendant was threatening [the complainant] slinging the knife behind her to persuade her up the hill. He also stated he will spear her with the knife if she runs away. She was afraid of the Defendant at that time so she followed the Defendant to the place where he wanted them to go. At that place the Defendant asked her to remove her clothes, but the victim refused. The Defendant then took his knife and wanted to cut the victim’s legs but she jumped, so he cut the ground. She refused to take her clothes off but because she was alone with him in the bush and she knows he could do something to her so she took her clothes off. The Defendant then took his clothes off and had sexual intercourse with the victim. Sexual intercourse took place only for a short while.

After that they walked down the hill and walked towards home when they could see the victim’s friends. Before reaching the victim’s friends, the Defendant told the victim not to run or he will spear her with the knife, and told her that she has to act as if nothing had happened to her.

When they reached the victim’s friends, the Defendant went to see [2 other complainants]. The victim on the other hand, went to see Leisande Hake and they walked home.

The girls were scared of him and wanted to run away, but he stated to them if they run away he will catch them and cut them. Then [the 2 further complainants] stood as they were afraid of the Defendant and his threatening words. He told them that, ‘yutufala isave mi, mi mi wan ex-prisoner mo mi bin rape mo naoi a mi ron wei long jail’. After saying these words he told [the 2 complainants] to follow him after pointing the road along the river to them. They then followed the road that he pointed to them to follow. While they were walking along that road, the Defendant was walking behind [the 2 complainants]. After sometime, the Defendant told [one complainant] to stay while [the other complainant] followed him onwards. [The complainant who followed] at that time was only following the Defendant’s instructions as she was scared of him holding the big knife and being to jail for rape.

They came to a yard where wild canes grew there. The Defendant asked [the complainant] to go into the yard. Inside the yard the Defendant asked [the complainant] to remove her clothes. Then [the complainant] who was already scared of the Defendant removed her clothes. After removing her clothes the Defendant asked her to lie down. Then the Defendant removed his clothes and lay on top of [the complainant] (victim 2) and kissed her. The victim states in her statement that when the Defendant wanted to kiss her, she refused to kiss him but the Defendant kept on forcing her to kiss him. When the Defendant was kissing the victim the Defendant was also penetrating the victim at the same time. At the time of sexual intercourse the victim asked the Defendant not to let his sperm run into her body but the Defendant did not listen to her plight. After sexual intercourse they wear their clothes back and walked to the main road, The Defendant at that time stated to the victim not to tell anyone of what happened to her.

The prosecution says that from all the intended prosecution witnesses, they stated that they were afraid or scared of the Defendant when he threatened them with the knife and a piece of wood he was holding when he approached them, after their swim at Tagabe River.

The offence of rape is defined in Section 90 of the Penal Code Act [CAP. 135] and the maximum penalty is set under Section 91 of the Penal Code Act.

LAW

RAPE DEFINED

Section 90 provides:-

“90. Any person who has sexual intercourse with another person:

(a) without the 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;

(v) in the case of a married person, by impersonating that persons husband or wife;

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

Section 91 says:-

91. No person shall commit rape.

Penalty: Imprisonment for life.”

Rape is the most serious crime punished by the legislative as reflected in its maximum penalty of imprisonment for life.

The guideline judgment is the judgment of the Court of Appeal in PP v. Maslea Scott and Jeremiah Tula, Court of Appeal Case No. 2 of 2002. In that case, the Court of Appeal adopted sentencing guideline issued in the case of PP v. Ali August, Criminal Appeal Case No. 14 of 2000. It is reproduced below:-

“The offence of rape is always a serious crime. Other than in wholly exceptional circumstances, rape calls for an immediate custodial sentence. This was certainly so in the present case. A custodial sentence is necessary for a variety of reasons. First of all to mark the gravity of the offence. Secondly to emphasize the public disapproval. Thirdly to serve as a warning to others. Fourthly to punish the offender, and last by no means least to protect women. The length of the sentence will depend on the circumstances. That is a trite observation, but these in cases of rape vary widely from case to case.

For rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested trial. ... Furthermore the offence of rape should be in any event is treated as aggravating by any of the following factors:

(1) violence is used over and above the force necessary to commit rape

(2) a weapon is used to frighten or wound the victim

(3) the rape is repeated

(4) the rape has been carefully planned

(5) the defendant has previous convictions for rape or other sexual offences of a violent or sexual kind

(6) the victim is subject to further sexual indignities or perversions

(7) the victim is either very old or young

(8) the effect upon the victim, whether physical or mental, is of special seriousness.

Where any one or more of these aggravating features are present, the sentence should be substantially higher than the figure suggested as the starting point.

The fact that the victim may be considered to have herself to danger by acting imprudently (as for instance by accepting a lift in a car from a stranger) is not a mitigating factor... Previous good character is of only minor relevance.”

In this case the aggravating factors are as follows:

• There was force used necessary to commit rape
• A weapon is used to frighten or wound the two victims
• The victims are young (14 years)
• Rape was committed on 2 different girls on the same day.
  

The Defendant has few previous convictions.

1. On 25 February 2004 the Defendant pleaded guilty to theft and was convicted. He was sentenced to 2 months imprisonment, suspended for 1 year.
   
2. On 25 February 2004, the Defendant pleaded guilty to theft and was convicted and sentenced to 3 months imprisonment, suspended for 1 year.
   
3. On 3 July 2003, the Defendant and Sam Koilo were charged with rape and pleaded not guilty. The matter went on to trial and the Court found that there was no prima facie case disclosed and discharged both Defendants.
   

Counsel for the defence informs the Court that the Defendant, Paul Shem admits to the facts as stated by the prosecution. The Defendant is 21 years old. He lives in a de facto relationship with a woman and they have a child of 1 year of age. The Defendant pleaded guilty for two (2) charges of rape on the first opportunity provided to him.

The defence conceded the very serious nature of the offence of rape. The defence conceded also that in the present case there are aggravating features. However, the defence says the Defendant has no previous convictions for rape. Further the defence says, they concede that an offence of rape warrants a custodial sentence. The defence says the Court must take into account of the guilty plea of the Defendant and his age.

The Defendant has spent time into custody from 28 April 2005 to 3 May 2005 (at least 2 weeks) and again from 30 December 2005 to 27 January 2006 which is a total of 1 month and 2 weeks in custody before he was sentenced by the Court on 27 January 2006.

In sentencing the Defendant, I take into account what the defence counsel say on his behalf. It is a fact that the Defendant has previous convictions other than in rape offences. I take into account that the defendant has no previous conviction for Rape. I take into account also his guilty plea and age.

However, in the present case, the factual circumstances leading up to the conviction and sentence of the Defendant for rape in both instances are very serious. Both offences of rape are perpetrated with the following aggravating features:

• Force used to necessitate the commission of rape in both circumstances;
• A weapon (a bush knife and a wood in the first rape incident; and knife in the second) used to frighten, threaten or wound the girl victims;
• The girls are young (14 years old).
  

The following constitutes additional aggravating features:

• On 7 June 2005, the Defendant was called upon for his sentence. He did not attend. He escaped. He was hiding to avoid his sentence.
• A warrant was issue for his arrest. His sentence was adjourned to 15 June 2005 at 1.30PM.
• The Court was informed that the Defendant could not be located. He was still in the run. The defendant was then arrested, kept in custody and brought to Court on 27 January 2006 for his sentence.
  

On consideration and balance, the aggravating features out weigh the mitigating ones.

This case warrants an immediate custodial sentence for the following reasons:

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

In PP v. Kevin Gideon and others the Court of Appeal held:

“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. Men who take advantage sexually of young people forfeit the right to remain in the community.”

Again in the PP v. Atis Willie, Criminal Appeal Case No. 13 of 2003, the Court held:

“The rights of women must be protected. The Courts in seeking to uphold these rights must in a uniform way impose sentences which have a potential to deter men who behave wrongly against women and which clearly condemns this type of behaviour.”

The next question is a custodial sentence for how long?

Applying the guideline judgment in PP v. Maslea Scott, I sentence the Defendant, Paul Shem to 8 years imprisonment for the offence of rape in count 1 and 8 years imprisonment for the offence of rape in count 2.

I consider suspension but the circumstances of the 2 offending do not warrant a suspension of the sentence. On the contrary, they require the sentences on the 2 offences of rape to be served cumulatively by the Defendant. This means that the Defendant, Paul Shem, is ordered to serve a total of 16 years imprisonment minus a period of 1 month and 2 weeks he had already spent in custody.

The Defendant, Paul Shem, is ordered to serve a sentence of 15 years and 10 months and 2 weeks with immediate effect.

The Defendant, Paul Shem, has 14 days to appeal his sentence.

DATED AT PORT-VILA this 27^th day of January 2006

BY THE COURT

Vincent LUNABEK
Chief Justice