Public Prosecutor v Jonathan [2008] VUSC 29; Criminal Case 5 of 2008 (2 April 2008)

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

CRIMINAL CASE NO. 05 OF 2008

PUBLIC PROSECUTOR

-V-

JOHN JONATHAN

Mr Bernard Standish for the Public Prosecutor
Mr Jacob Kausiama for the Defendant

SENTENCE

This is the sentence of the Defendant, John Jonathan. Mr John Jonathan, you are charged with the offence of Sexual Intercourse without consent, Contrary to Section 91 of the Penal Code Amendment Act No.26 of 2006.

You pleaded guilty to that offence.

The brief facts of the case are not disputed. They are set out in the prosecution brief of facts as follows:

Miss L. is the victim in this matter. She is from Enumakel Village, Tanna. Her mother gave her away to be looked after by her grand parents when she was a baby. She grew up with her grand parents and you Mr John in Enumakel Village in Tanna.

Mr John Jonathan, you are also from Enumakel village, Tanna. You are L’s mother’s brother. Miss L is your niece. You are married.

When her grand father got sick, her elder uncle living in Vila send message for her granny to go and live with him in Vila so that he can get medical treatment from Vila Central Hospital. Both her grand parents trusted that you and your wife would look after your niece.

On or about Friday, 27th July 2007, you had sex with Miss L without her consent in the house. Your wife took your child to Lenakel hospital and did not return home in the night.

That night, you came home asking for your wife but Miss L responded that she took your child to the hospital. Your wife had passed a message to Miss L that they will come back on Sunday. Reason being that they have with them only Five Hundred Vatu (VT,500). She then told you your message.

You asked her what she had cooked for supper. She responded that she cooked manioc and Nampalango.

You do not want to have supper so you went to bed instead.

You are on your way to sleep but she told you that she had hammered a mail on the door to your room and asked you to wait so that she can removed it from the door. You went to sleep. L took her light and went to sleep as well. She slept in another house. A few minutes later, she heard your calling her from outside the door. You asked for the light. She got up and handed you the light.

You went to the kitchen. Miss L went to the kitchen to check a pot of rice given to her by one of her grannys. The pot of rice was smelly so she threw the rice away. You told her that you wanted to check something in Miss L’s house. She then took a match and went to the toilet.

When she returned she heard you called her by the name and ask the second time where your wife was. She responded that she had already told you that your wife went to the hospital. You further asked her if your wife is not returning tonight and she said "Yes".

Miss L alleged that you told her that she would sleep with you in your house but she refused. She told you that she can sleep alone in her house. You forced her to sleep with you. She started walking towards her house. She looked behind and saw you walking behind her.

She then told you to go and have some rest because you had walked a long way. You responded to her that you can bit her because she cannot defend herself. You threatened her to go inside her house. You told her that if she does not go inside the house you would bit her up until she urine. She went into the house. You followed after her. She alleged that she told you that you will sleep on the mat. She allowed you to sleep on her mattress to show her respect. She took her pillow and sleep on the mat when you threatened her to get her pillow and sleep with him on the same mattress with you.

You threatened her that you would bit her until she urine if she does not sleep with you on the mattress. She got scared of you because these was no one else around. Everybody was already asleep. It was around 11:30pm to 12 mid-night. She got the pillow, slept on the mattress and covered her with her blanket. She says she feel you came closer to her side and slept beside her. You held her and was moving back and forth towards her. She told you she does not want this sort of things, using the magic words.

You responded to her "why?" "Are you frightened because I turned off the light?" She responded that she does not want to. You told her to remove her panty but she refused and started crying. She begged you to stop because she doesn’t like what was happening. You then threatened her that you would tear her panty if she does not remove it.

You further stated that her legs are too small for him to break them. You pushed your hand to remove her panty but she blocked your hand from removing it. You fought with her in return in order to put her onto the mattress. You forced to remove her panty then slept on top of her. You had sex with her without her consent.

Miss L alleged that she begged you as her uncle not to act that way to her but you did not stop. After sex, she got her clothes back on and went outside the house. You asked her where she was going. She did not respond. She hid and went to Miss Tou in Henry Iaouko’s house. Mr Henry is related to Miss L. He is a grand father to her. Mr Henry called Mrs Ruth Iaouko from the room. She came out and Miss L told her everything about what you had done to her.

You admitted to the Police that you had sexual Intercourse with Miss L without her consent.

Your lawyer told the Court that you are 34 years old. You are from Enumakel village, White Sands area, Tanna. You are married. You are a member of SDA Church in your Community.

You are a first time offender.

You pleaded guilty. You had faced with lots of shame for your action.

You instructed your lawyer to tell the Court you had drunk kava and Rum Cola (about 10 bottles). You instructed your lawyer to tell the Court that somebody gave you small cannabis and you smoked it.

You told your lawyer to tell the Court that you have realized that what you did was not right had performed custom ceremony to the complainant with the following:

- 2 calico, 2 mats, 1 goat;
- 1 bag of 25 kg Rice; and
- 5,000VT (cash).

The Sexual Intercourse without Consent contrary to Section 91 of the Penal Code Amendment Act No.25 of 2006 is always a most serious crime.

Parliament recognizes this offence as a most serious crime by imposing a maximum penalty for life imprisonment.

Sections 89A, 90 and 91 of the Penal Cod Act (as amended) are the relevant criminal provisions. They provide as follows:-

"SEXUAL INTERCOURSE DEFINED

89A. For the purposes of this part sexual intercourse means of the following activities, between any male upon a female, any male upon a male, any female upon a female or any female upon a male:

(a) the penetration, to any extent, of the vagina or anus of a person by any part of the body of another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorized by law; or

(b) the penetration, to any extent, of the vagina or anus of a person by an object, being penetration carried out be another person, except if that penetration is carried for a proper medical purpose or is otherwise authorized by law; or

(c) the introduction of any part of the penis of a person into the mouth of another person; or

(d) the licking, sucking or kissing, to any extent, of the vulva, vagina, penis or anus of a person; or

(e) the continuation of sexual intercourse as defined in paragraph (a), (b), (c) or (d); or

(f) the causing, or permitting, of a person to perform any of the activities defined in paragraph (a), (b), (c) or (d) upon the body of another person."

"SEXUAL INTERCOURSE WITHOUT CONSENT

90. 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 representations 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

(vi) by the effects of alcohol or drugs; or

(vii) because of the physical or mental incapacity of that person.
commits the offence of sexual intercourse without consent.

PUNISHMENT OF SEXUAL INTERCOURSE WITHOUT CONSENT

91. No person shall commit sexual intercourse without consent

Penalty: Imprisonment for life."

The following are what the Courts of the Republic have said and reiterated again and again when they deal with a person or more than a person who commits a crime of rape or sexual intercourse without consent the consent of the complainant. The guideline judgment is in PP v. Maslea Scott and Jeremiah Tula, Criminal Appeal Case No.02 of 2002.

"The offence of rape is always a most serious crime. Other than in wholly exceptional circumstance, 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 public disapproval. Thirdly to serve as a warning to others. Fourthly to punish the offender, and last but 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 an aggravating or mitigating feature, a figure of five years should be taken as the starting point in a contested case. Where a rape is committed by two or more men acting together, or by a man who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive the starting point should be eight years.

At the top of the scale comes the defendant who has committed the offence of rape upon a number of different women or girls. He represents a more than ordinary danger and a sentence of fifteen years or more may be appropriate.

Where the defendant’s behaviour has manifested perverted or psychopathic tendencies or gross personality disorder, and where he is likely, if at large, to remain a danger to woman for an indefinite time, a life sentence will not be appropriate.

The offence of rape should in any event be treated as aggravated 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 serious 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.

If the defendant pleads guilty, the sentence should be reduced by 1/3 depending on the circumstances, including the likelihood of a finding of not guilty had the matter been contested.

The fact that the victim may be considered to have herself in danger by acting imprudently (as for instance by accepting a lift in a car from a stranger) is not a mitigating factor, and the victim’s previous sexual experience is equally irrelevant. But if the victim has behaved in a manner which was calculated to lead the defendant to believe that she would consent to have sexual intercourse, then there should be some mitigation of the sentence. Previous good character is of only minor relevance.

That reasoning is again apparent in the further Judgement of the Chief Justice in Public Prosecutor v. Mark Katipa and Peter Roy delivered on 17th September 2002 where the same principles were repeated but the Judge noted that the proper starting point in that case was 8 years imprisonment with adjustments for aggravating and mitigating factors as the two (2) accused pleaded not guilty.

There can be no room for any deviations from these fundamental and essential principles. The rights of women must be recognised maintained and upheld

Even giving them a substantial allowance because these two men eventually pleaded guilty, in our judgement a sentence of five or six years would not have been interfered with by this Court on appeal. That is the level of deterrence and condemnation which must be imposed on those who behave in this way.

In those previous cases mentioned and in the similar decision of Justice Coventry in Public Prosecutor v. Ivon Feriam Criminal Case No. 32 of 2001 the Courts have consistently noted that there can be no issue of suspension in sexual abuse cases."

This case is not a case in which there is allegation of a weapon used. There is no aggravation in the commission of the crime of sexual intercourse without consent. There is no repetition of that offence. The offence is not a properly planned offence. It is an opportunistic offence without further indignities. The victim was not very old nor very young.

There is no special seriousness which elevates this case from the starting point of 5 years imprisonment. The appropriate sentence I impose on you is 5 years imprisonment. I must take account of your guilty plea, the fact that you are a first time offender, the custom ceremony you have performed. In court you apologize to your niece for what you have done to her and your say sorry to her, your family and chief. After proper adjustment, I sentence you to 3 years imprisonment with immediate effect.

You have 14 days to appeal.

DATED at Isangel, Tanna, this 2nd day of April 2008

BY THE COURT

Vincent LUNABERK
Chief Justice