Public Prosecutor v Naruan [2012] VUSC 132; Criminal Case 02 of 2012 (19 April 2012)

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

Criminal Case No: 02 of 2012

PUBLIC PROSECUTOR

VS.

JEAN PIERRE NARUAN

Mr Justice Oliver A. Saksak

Mr P. Wirrick for the State
Miss J. Tari for the Defendant

SENTENCE

1. Jean Pierre Naruan today the Court will sentence you for pleading guilty to two counts of Sexual Intercourse Without Consent, (Counts 2 and 3). Section 91 of the Penal Code Act Cap 135 (the Act) prohibits the offence of sexual intercourse with another person without consent. The penalty provided under that section is life imprisonment.

2. The facts as stated by the Prosecutions in their written submissions are that -

1. " The defendant was at all material times 19 years of age and a resident of Lavusvatu, Luganville. The complainant was at all material times 11 years of age and a resident of Sarakata, Santo. The complainant was born on the 6th of July 2000.

2. At around lunchtime on New Year's Day the 1st of January 2012 the complainant, her family and some relatives along with the Defendant – who was known to the family travelled in a transport vehicle to the Sarakata River bank located near Mango area for a picnic.

3. Upon arriving, one of the Complainant's relatives asked the Complainant, two other young girls and the Defendant to collect some firewood. While on their way to look for firewood the Defendant insisted that they form two groups to look for the fire wood and that the Defendant would partner with the Complainant. The Complainant walked with the Defendant. The Defendant led the Complainant through the bush and along the river bank for quite some time before stopping and telling the Complainant to look at some fish in the river.

4. At this point the Defendant looked at the Complainant and said to her "tedei bae me fakem yu". The Complainant immediately refused whereupon the Defendant removed his trousers and shirt. The Defendant instructed the Complainant to remove her clothing. The Complainant refused. The Complainant was holding onto her shirt and pants. The Defendant forcefully removed the Complainant's hands and held onto both her hands with one hand. The Defendant removed the Complainant's pants with his free hand.

5. The Defendant told the Complainant not to shout or else he would kill her. The Defendant lifted the Complainant's hands up and removed her shirt before instructing her to lie down on the ground. The Defendant held onto the Complainants legs and put them over his shoulders before inserting his penis into the Complainant's vagina. The Complainant felt pain. The Complainant kicked the Defendant in his chest area but the Defendant persisted. The Complainant was bleeding and felt pain.

6. While raping the Complainant the Defendant held onto the Complainant's hands over her head. As the Complainant struggled to free herself the Defendant held onto her neck with his hand and held her neck strongly against the ground. The Defendant withdrew and gave the Complainant her clothes. The Complainant followed the Defendant further and they picked up coconuts before the Defendant instructed the Complainant to remove her pants.

7. The Complainant feared for her life and so removed her clothing and laid down on the ground. The Defendant again put the Complainant's legs over his shoulders and penetrated her anus with his penis. The Complainant was still bleeding at this time and felt pain. After withdrawing, the Defendant told the Complainant not to tell anyone about what happened and to inform the others that they had come from Solway if they asked why they took so long.

8. The Defendant led the Complainant back to the picnic site whereupon relatives asked the Complainant why they took so long. At this time the Defendant and another young man who came to the picnic swam together in the river. The Complainant was crying and told her relatives what happened. While doing so the Defendant realized that the Complainant was talking about what had happened and so he and the other young man left.

9. The Complainant's parents and other relatives left the river and took the Complainant to the hospital. At the hospital the Complainant was examined and a medical report was prepared. The medical report is consistent with a forced sexual encounter involving penile penetration of the vagina and anus. The Defendant was arrested soon after the incident and in his Record of Interview the Defendant answered all questions cooperatively yet failed to admit that any of the sexual intercourse was non-consensual".

3. In your defence submissions you have conceded to most of the facts but deny the first sentence of paragraphs 5 which indicates that you threatened the Complainant not to shout or else you would kill her. The Court notes however that these same set of facts were provided to the Court on 3rd March 2012 however no objections were raised by defence Counsel at that point. But even if it is true that you did not threaten to kill her if she shouted, it will not bear much weight against sentencing you today.

4. From the facts the following aggravating features are clearly seen –

(a) Your victim was an 11 year old girl. Physically she is very much a little girl.

(b) Your offendings were repetitive, the first occasion the offending was done to the vagina. The second offending was done to the anus.

(c) There was some degree of violence and physical force used indicating that the degree of violation done was of great significance.

(d) From the medical report there were clear evidence of physical injuries done to the body and person of your victim. The pre-sentence report indicates the psychological impact on the victim which would no doubt affect her for the rest of her life.

(e) Both instances of penetration were unprotected, exposing the victim to risks of pregnancy and infection.

(f) There was a degree of planning.

5. The Prosecutions have urged the Court to follow the sentencing principles and guidelines laid down in the classic cases of Public Prosecutor v. Scott [2002] VUCA 29 and Public Prosecutor v. Gideon [2002] VUCA 7 and to adopt a starting point of 10 – 15 years before considering any reductions for mitigating factors. Defence Counsel urged the Court to adopt the starting point of 8 years imprisonment on the basis of PP v. Scott. Both Counsel have urged the Court to impose concurrent sentences. Defence Counsel relied on the case of Kalfau v. Public Proecutor [1990] VUCA 9 in support of her submission that a concurrent sentence should be imposed.

6. The submissions from both the Prosecutions and Defence Counsel indicate that the only appropriate penalty to be imposed by the Court today is a custodial one. The case of Public Prosecutor v. Ali August, VUSC 14 as endorsed by the Court of Appeal in PP v. Scott clearly supports this position. A punishment of imprisonment would serve the following reasons -

(a) To mark the gravity of the offendings;

(b) To show public disapproval and condemnation for the offendings;

(c) To act as a warning and deterrence to others;

(d) To punish the offender adequately; and

(e) To protect young girls and women in the society.

7. The Court accepts the six aggravating features submitted by the Prosecutions. Five of these aggravating features, fall within the listed circumstances in the Scott case. These are that -

(a) Rape was repeated;

(b) The victim is very young

(c) A degree of force and violence was used; and

(d) The physical and mental effect on the victim.

(e) The offending was planned.

These warrant that the starting point should be placed higher than 5 years. The Prosecutions submitted the starting point should be between 10 – 15 years imprisonment. This is far too high in the opinion of the Court. On the other hand the starting point of 8 years as submitted by defence Counsel is on the lower side. The appropriate starting point in view of the seriousness of the offences committed in light of the aggravating circumstances should be 9 years imprisonment with no uplift.

8. Mr Naruan, you are therefore convicted and sentenced to 9 years imprisonment on each of the two counts of Sexual intercourse without consent. The sentence of 9 years must be served concurrently.

9. I now consider reductions of sentence in light of the mitigating circumstances. Defence Counsel submitted four factors for consideration as follows:-

(a) Being a first time offender;

(b) Good cooperation with the Police;

(c) Guilty plea; and

(d) Custom consideration.

10 The case of Public Prosecutor v. Andy [2011] VUCA 14 provides guideline for guilty plea where one third discount is allowed for a guilty plea .."at the first reasonable opportunity. A later guilty plea will result in a smaller discount. No discount is available under this head if the charges have been defended through a trial."

11 In this case the defendant initially pleaded not-guilty to the two charges of Sexual Intercourse Without Consent (Section 91) and Unlawful Sexual Intercourse (Section 97 (1)) on 3rd February 2012. He maintained those pleas and there was to have been a trial on 8th March 2012. The trial was aborted because defence Counsel Mr Daniel Yawha did not appear. Trial was then adjourned to 19th March 2012. However on the date the defendant had not made appropriate arrangements for his Counsel to appear and the trial was adjourned further to 2nd April 2012. Bail was granted on 3rd February and was extended on each occasion thereafter.

12 On 29th March 2012 the Prosecutions filed new Information containing new charges as follows:-

Count 1 Sexual Intercourse Without Consent – Section 91 of the Act.

Count 2 Sexual Intercourse Without Consent – Section 91

Count 3 Sexual Intercourse Without Consent - Section 91

Count 4 Sexual Intercourse Without Consent - Section 91

In the alternative –

Count 5 Unlawful Sexual Intercourse – Section 97 (1) of the Act.

Count 6 Unlawful Sexual Intercourse – Section 97 (1)

Count 7 Unlawful Sexual Intercourse – Section 97 (1)

Count 8 Unlawful Sexual Intercourse – Section 97 (1)

The defendant instructed Miss Tari of the Public Solicitor's Office in respect to these new charges who indicated the defendant's intention to be re-arraigned.

13 On 2nd April 2012 the defendant was re-arraigned and pleaded guilty to Counts 2, 3, 6 and 7 and not-guilty to Counts 1, 4, 5 and 8. The Prosecutions applied for leave to withdraw Counts 6 and 7 in light of his guilty pleas to Counts 2 and 3 and then sought leave to withdraw Counts 1, 4, 5 and 8 to which he pleaded not-guilty. Leave was granted and those charges in Counts 1, 4, 5, 6, 7 and 8 were withdrawn.

14 The Court notes from the Pre-Sentence Report that on 9th March 2012 a sum of VT200,000 was paid to the father of the victim not as a custom or peace ceremony but as a fine in reduction of any term of imprisonment to be imposed by the Court. This money was paid by Mr Charlie Johnson and in the absence of the defendant although he was aware of it. The reason he was not present is due to his bail conditions that prohibited the defendant from going within 100 meters of the victim's residence.

15 Despite the defendant having knowledge of the payment of VT200,000 as fine in acknowledgment that he had done wrong, the defendant continued to maintain not-guilty pleas on 2nd April 2012 to Counts 1, 4, 5 and 8. Had the Prosecutions not chosen to withdraw these charges in light of his guilty pleas to alternate charges in Counts 6 and 7, the matter would still proceed to trial. In light of all this the Court must ask what was the real purpose of the VT200,000 payment? From the terms of the Reconciliation Agreement the Court can safely infer it was a compensation payment and as part of an impending reconciliation ceremony. Two chiefs witnessed the payment and the signing of the Agreement thus endorsing it to be a "compensation or reparation under custom" within the armbit of Section 39 of the Act. As such the Court must take the payment of VT200,000 into account in assessing penalty or in reduction thereof.

16 In light of the above circumstances, there will be no reduction for guilty pleas on 2nd April. The defendant could have pleaded guilty as early as 3rd February 2012 but he did not. The defendant has not expressed any remorse whatsoever. The Court notes that he is a young man of good character with no previous convictions. He cooperated well with the Police during investigation stages of his case. And a reparation under custom has been done on his behalf. For these three factors combined with his young age, it is the view of the Court that a discount of one third should be allowed. This is allowed so that the length of sentence does not have a crushing effect on the young defendant.

17 I therefore Order that 3 years be deducted from the defendant's term of 9 years imprisonment. Effectively the defendant must serve out the balance of 6 years imprisonment at the Correctional Centre in Luganville, Santo.

18 This term of 6 years is deemed to have commenced on 2nd day of April 2012 being the date he was remanded in custody after conviction to await sentence.

19 That is the sentence of the Court. The defendant has a right of appeal within 14 days if he so chooses.

DATED at Luganville this 19th day of April 2012.

BY THE COURT

OLIVER A. SAKSAK
Judge.