Public Prosecutor v Andre [2008] VUSC 58; Criminal Case 50 of 2008 (29 July 2008)

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

Criminal Case No. 50 of 2008

PUBLIC PROSECUTOR

-V-

RINGIAU ANDRE
PHILIP ANDREW
SANDRINO PAUL
PASCAL JACKSON
CHARLIE DON
AWEN GEORGE

Coram: Justice C. N TUOHY

Counsel: Mr. Molbaleh for Prosecution
Mr. Toa for Defendants

Date of Sentence: 29 July 2008

SENTENCE

1. You Ringiau Andre, Philip Andrew, Sandrino Paul, Pascal Jackson, Charlie Don and Awen George appear for sentence on three joint charges. The first charge is a charge of Rape against all six of you upon a young Australian woman at Bellevue between the nights of the 28th, 29th March this year. Count 2 is a charge against all of you except Awen George of Theft of various properties from her house and count 3 is charge against all six of you of Burglary, unlawfully entering that house.
   
2. The victim is a single woman who was living in a house at Bellevue and on this night she was sleeping alone in her house. The house was locked and her bedroom was locked.
   
3. Two days earlier all of you had escaped from lawful custody at the Stade Correctional Centre, where you are being held in relation to various crimes on which you were facing trial or sentence, some of them very serious crimes, including rape, arson and intentional homicide. In the case of Charlie Don you were a prisoner serving a sentence. Despite being on the run you had been drinking together in a local night club.
   
4. You went to the victim’s house looking to burgle the house to obtain food and alcohol, the time was about 1:30 in the morning. You broke into the house and entered her bedroom, one of you had a bush knife in your possession. You grabbed her and threatened her, she was screaming and kicking and scratching. She was then held very tightly around the neck until she was choking. She was pulled to the floor and each of you proceeded to rape her one after the other, while others were holding her legs open. While this was happening her face was covered with something like a bag or a pillow and she thinks that she may have been raped more than once by some of you. While she was being raped others were ransacking her house and she was forced to show you where the money was, that you took, and you took that plus various items of her personal property before you left.
   
5. The whole ordeal lasted close to an hour. After it ended she waited no doubt till she was sure that you had left and then called her father in Australia. The Police arrived and she was taken to hospital for treatment. She suffered strangling injuries to her neck and she had injuries to her face and arm and her private parts showed the result of forced intercourse.
   
6. You need to hear about the effects on this young lady of what you did to her. She says that her personality and her confidence and how she acts with other people have changed since this happened to her. She had a good life and good friends and a good job in Vanuatu and she liked living in Vanuatu. Now she has been forced to leave the country.
   
7. As well as treatment for the injuries that she had, she has had to be given treatment in case she has obtained some sexual disease from you and she has to keep having tests in case that has happened and she has been very afraid that you have passed on to her some sexual disease.
   
8. She now has to have psychological treatment, she has nightmares she cannot sleep, she is depressed and withdrawn. Even though she is 26 years old she now has to live with her parents and she depends on her parents for financial support. She used to like living in Vanuatu very much and her parents were considering working in Vanuatu and investing here. But now, because of what has happened to them and their daughter, they say that it is unsafe.
   
9. Ringiau Andre, you were one of the leaders in what happened. You got in through a window with Philip Andrew. You not only raped the victim, you stole and sold her laptop, her DVD player and some vatu. You admit holding her mouth while she was being raped by others. The pre-sentence report shows that you are 21 years old, you have a son on your home island, you are educated to class 6. You expressed remorse for the victim and her family but I can give little weight to that. It does not fit with the fact that you have continued to escape from prison several times since your arrest on this charge. You have a very serious record of previous convictions by sexual offending and burglary. You committed a rape on a 12 year old on 22nd November 2005 and are now waiting for sentence on that. You also committed a rape on a woman on 13th November last year, and you are waiting to be sentenced on that. You admitted numerous charges of burglary and theft of property covering 2007 and 2006. The 2007 ones you are awaiting sentence, the 2006 ones you have received some short sentences. Your record and this offending shows that you are a very serious danger to the people of Vanuatu.
   
10. Philip Andrew, you are aged 18, you are educated to class 4, you are living with your brother in Vila, your parents being on your home island. You have no previous convictions. You expressed sorrow for this offending but again I put little weight on that. You like all the others apart from Pascal Jackson had escaped again from prison after your arrest on these charges. You got in the window with Ringiau and let the others in. You stole the lady’s Ipod, her mobile phone and some Australian currency from her.
    
11. Sandrino Paul, you are aged 20. At the time of your escape you were on remand for charges of burglary and being involved as a party to intentional homicide, the victim being an elderly woman. You also had escaped from custody numerous times before and after this event. I give little weight to your expression of remorse. The pre-sentence report indicates that you have been uncooperative and non-compliant while at the Correctional Centre.
    
12. Pascal Jackson, you are aged 21. You spent your early years here and you were educated on your home island. You are the most educated of the six of you. You went to primary and secondary school to year 11. You got a certificate in Auto Mechanics from the Vanuatu Institute of Technology and you then were employed in a hardware firm in Vila. You were at the time of your escape on remand awaiting sentence on a charge of unlawful sexual intercourse with a 13 year old girl. You helped to break into this lady’s property, although you did not steal any of her goods. You are the only one who did not escape again after you were recaptured.
    
13. Charlie Don, you are older than the first 4 I have spoken to. You were the first to rape the victim. She had a pillow held over her head while you were doing that. You went on to steal 4 bottles of champagne and some food and her camera from her. At the time you escaped you were serving a sentence of 6 years 5 months in total for rape and intentional assault which was imposed on you in December 2005. According to the probation officer who wrote the pre-sentence report you showed no sign of remorse to him.
    
14. Awen George, you also are 26, you are educated to year 7 and could not continue because of lack of finance, which is the case with several of you, and you moved to Vila as an adult. You were in custody on remand facing a charge of arson relating to the Court house fire when you escaped. You had escaped numerous times both before and after this offence. You admitted the rape and burglary but otherwise there are no more details about your particular part in it.
    
15. The law relating to sentencing for charges of rape is well known. It is contained in the judgment for the Court of Appeal in a case called PP v. Scott and Tula, where the Court adopted the principles outlined by the Chief Justice in an earlier case called PP v. Ali August. This is what the Chief Justice said about sentences for rape:
    

"The offence of rape is always a serious crime. Other than in wholly exceptional circumstances rape calls for an immediate custodial sentence. A custodial sentence is necessary for a variety of reasons. The reasons are first of all to mark the gravity of the offence. Secondly to emphasize public disapproval and thirdly to serve as a warning to others. Fourthly to punish the offending and last by no means least to protect women."

The Chief Justice said that for rape committed by an adult without any aggravating or mitigating features a figure of five years should be taken as a starting point in a contested case. But where other factors exist such as rape committed by two or more men acting together or by a man who is broken into a place where the victim is living the starting point should be 8 years. He said that 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 more than an ordinary danger and a sentence of 15 years or more may be appropriate. He also said that there are various other factors where rape should be treated as aggravated, where a weapon is used to frighten, where violence is used more than the force necessary to commit, where the rape is repeated, where the defendant has previous convictions for rape or other serious offences of a violent or sexual kind, the effect on the victim and others. He said that where any more of these aggravating features are present the sentence should be substantially higher than the figure suggested as the starting point. He said that if the defendant pleads guilty, that the sentence should be reduced by one third depending on the circumstances, including the likelihood of a finding of not guilty had the matter been contested.

16. The most serious offence here is obviously the offence of sexual intercourse without consent or rape. There are a number of aggravating features relating to this event. The first is the fact that this was a rape carried out on a victim by more than one person. This was a pack rape by 6 men, one after the other. Maybe in some cases it is more than one. It was a cowardly and brutal attack in which you had no regard for her as another human being. It is another aggravating factor that this was carried out in her own home, even her own bedroom where she was entitled to feel safe. The six of you invaded her house and her bedroom during the middle of the night. It must have been extremely frightening for her. One of you had a bush knife that must have frightened her.
    
17. As well, force was used, her throat was strangled, a pillow or something was held over her face and her legs were forced open. In addition there were threats made to kill her while this was going on and this lasted nearly an hour. She suffered the further indignity of her home being ransacked and the people who raped her stealing her personal belongings and money.
    
18. Those are the aggravating features relating to offending. There are also some aggravating features relating to you as offenders. All of you had escaped from lawful custody at the time you committed these offences. I am told that you will not be charged for the escape which preceded this rape and I intend to take it into account as an aggravating feature in the sentences that I impose today. In addition some of you have further aggravating factors relating to yourselves and that is conviction for prior offences of rape or other sexual offending. In the case of Ringiau Andre, also numerous burglaries.
    
19. As far as mitigating features are concerned I can see only one, and that is that all of you have pleaded to all charges against you. Those pleas of guilty will be taken into account as they have saved the victim what would be a terrible ordeal in the circumstances of returning to give evidence and the State considerable expense. I think this has to be given substantial credit because this is a case where if you had not made admissions by confessions and perhaps by DNA samples, there may well have been considerable difficulty in obtaining convictions against all of you because of the fact that you were strangers to this young lady and this happened at night. Without your admissions in those ways there may have been difficulty proving identification in my view.
    
20. There is another aspect of this offending which I am not going to treat as an aggravating feature but which needs to be mentioned. This crime committed by escaped prisoners has caused damage not just to the victim but to all people of Vanuatu particularly women. It has reduced the feelings of security of all women in Vila, it has made them feel less safe and less secure in their own homes.
    
21. You have damaged the reputation of Vanuatu and you have brought shame on your own families. I have recently had the task of imposing substantial sentences in another case of pack rape. I had to say that this one is if possible an even worse case than that.
    
22. I am now going to impose the sentences, so I ask all of you to stand. I fix a starting point for the offending taking into account all aggravating factors relating to the offence itself, at 12 years imprisonment and I add 1 year for the fact that at the time of the offending all of you had escaped from prison. So I start at 13 years for all of you. In relation to Ringiau I am proposing to add a further 3 years to the starting point to recognize that you have already been convicted of other offences committed before this offence, 2 charges of rape and multiple charges of burglary.
    
23. I realize you still have to be sentenced on the two rape charges. The judges who sentence you will need to take into account the sentence that I will impose on you today and the way it has been imposed, the basis on which it has been imposed. So the starting point for you Ringiau Andre will be 16 years. Charlie Don, there will be added 2 years, so a starting point of 15 years will be adopted and Pascal Jackson 1 year, so a starting point of 14 years will be adopted. The other 3 a starting point of 13 years will be adopted. That is taking into account all aggravating factors relating either to offending or offender.
    
24. I reduce all your sentences by approximately 30% to recognize your pleas of guilty which I do consider are important and deserve normal recognition.
    
25. Andre Ringiau, the sentence imposed on you in relation to the charge of sexual intercourse without consent or rape is 11 years and 3 months imprisonment.
    
26. Philip Andrew the sentence imposed on you on count 1 the rape, the starting point is reduced from 13 years to 9 years imprisonment and that is imposed on you.
    
27. Sandrino Paul, the starting point of 13 years is reduced by 4 years to 9 years imprisonment that is the sentence imposed on you for rape.
    
28. Pascal Jackson, the sentence of 14 years starting point is reduced for your guilty plea to 10 years imprisonment.
    
29. Charlie Don your sentence of 15 years starting point is reduced to 10 years 6 months imprisonment and that is imposed on you.
    
30. Awen George the starting point of 13 years imprisonment for you is reduced to 9 years imprisonment and that is the sentence imposed on you.
    
31. In addition there will be a sentence of 2 years imprisonment imposed on each of you for burglary. That is to be served concurrently, that is it runs at the same time.
    
32. In addition, the following defendants are sentenced to 1 year imprisonment for theft which will run at the same time. These are the defendants who took substantial items: Ringiau Andre, Philip Andrew and Charlie Don. The other three defendants will be sentenced to three months imprisonment for theft which is to be served concurrently that is at the same time. Awen George receives no penalty for theft because he has not been charged with theft.
    
33. Finally I turn to the question of time served while awaiting trial or sentence. The Penal Code Act provides in section 51(4) that if the offender has been in custody pending trial or appeal, the duration of such custody is to be wholly deducted from the computation of a sentence of imprisonment. Subsection 3 says that in the case of the escape of a prisoner, the period in which he or she is unlawfully in liberty is not to be counted in the duration of the sentence.
    
34. The Court does not have the necessary information to carry out this task. All of you were captured at some stage after the 29th March the information provided in the pre-sentence report does not enable the Court to establish when in respect of each particular defendant.
    
35. Further, all except Pascal Jackson escaped again, on 1, 2 or 3 occasions, and there is no information before the Court as to how long the escape lasted in each case. The Court is not in a position to carry out this task. However, in regard to everyone except possibly Pascal Jackson, it is unlikely to be much of a reduction because of the continuous escaping.
    
36. All of you except for Charlie Don are facing trial or sentence on other charges. All of you except Charlie Don were at the time of your escape, in custody on those other charges. Any time that is that you have been in custody since the 29th March can be taken into account on your sentencing on other charges.
    
37. As far as Charlie Don is concerned he is a sentenced prisoner, he deserves no reduction of the time he has spent in custody awaiting trial or sentence on this charge because he was during that time serving a sentence.
    
38. For all those reasons I do not propose to make any reduction in sentence for the time that you have been, each of you, in custody between the 29th March and now. In Charlie Don’s case it is because he is serving a sentence of imprisonment. In the case of everyone else you are in custody also on other charges and it can be taken into account on those other charges.
    
39. Finally, you all have 14 days in which to appeal these sentences imposed on you, if you wished to. That 14 day period start today.
    
40. As far as Charlie Don is concerned it is necessary for me to articulate whether the sentences I have imposed upon him today are to be cumulative or not on his existing sentence. There is no reason why they should not be cumulative. They are nothing to do with his additional sentence. It is just that he serves his additional sentence and he serves his sentence imposed today. So the sentences imposed on Charlie Don today while they are concurrent between each other they are cumulative on the sentence of rape imposed on him on the 15th December 2005.
    
41. There is one final matter that I overlooked and that is suppression of the name of the victim. I have not named her. Neither has anyone else verbally in Court, but of course she is named in the various papers in Court. I intend to suppress her name from publication in the media. By that I mean, radio, television, newspapers and internet. I think this is something that should be done in Vanuatu as elsewhere.
    
42. As far as the report of this decision on Paclii is concerned any reference to her name will be removed from it. Her name has not been mentioned but I am making an order suppressing her name.
    

Dated at Port Vila, this 29th day of July, 2008

BY THE COURT

C.N. TUOHY
Judge