Public Prosecutor v Jack [2013] VUSC 109; Criminal Case 153 of 2012 (2 August 2013)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)
Criminal Case No. 153 / 2012
PUBLIC PROSECUTOR
V
POLO JACK

Sentence: 2 August, 2013

Before: Justice Robert Spear

Appearances: Ken Massing for the Prosecution
Andrew Bal for the Defence

SENTENCE

1. Jack Polo, you are for sentence on one charge of having sexual intercourse without consent and an allied charge of intentional assault. You were found guilty of the charge of sexual intercourse without consent following a trial that took place over 18 and 19 June 2013. You pleaded guilty to the charge of intentional assault at the commencement of that trial. I note now that the maximum penalty for committing sexual intercourse without consent is life imprisonment and the maximum penalty for intentional assault under section 107(b) of the Penal Code is one year's imprisonment.
   
2. The circumstances of this offending are disturbing in the extreme. The complainant, the victim in this case, is your wife with whom you have four children. Clearly there were difficulties in the marriage and they saw your wife leave the matrimonial home at Teouma on occasions to stay with her sister in Fresh Wota. According to the probation officer, you consider that she left the home for relatively minor reasons and this annoyed you.
   
3. On the day in question, you have been apart for about a month. This was on the 22nd October 2012. You saw the complainant in Port Vila outside the Daily Post office. You spoke to her and indicated to her that she should get into the taxi with you so that you could go around and see your children at Fresh Wota. You had no intention at all of going to Fresh Wota with her. She got into the taxi but you directed the taxi to take you out to Shark Bay; a distance of about 15 km from Port Vila. There was another man (a friend of yours) present in the taxi as well.
   
4. The events of that day clearly indicate that you duped her into getting in the taxi so that you could take her away and subject her to a beating for having the temerity to leave you. That is exactly what happened. When you reached Shark Bay, you dragged her out of the taxi and you started to beat her with your fists. Essentially you beat her senseless. There was some suggestion that in addition to using your fists, you also kicked her. However, I found that that was not proven on the evidence. There was also mention of a stick of length of wood being held by you at one stage but again there was no evidence that you struck her with that stick. She was left as I have mentioned bruised, battered, bloody and senseless.
   
5. By this stage, the taxi driver and the other man had left. It is clear that they witnessed the commencement of the assault on your wife. They must have been concerned that they might be drawn into this horrible assault if they remained.
   
6. You say that your wife and you then sat down on the beach and eventually matters turned to the point where the two of you had consensual sex. That was disputed by your wife. She said that you never asked her to have sex but just proceed without apparent concern for her wishes. She stated that this was, indeed, typical conduct by you and that during your marriage you regarded having sex with her as your right.
   
7. I need to say now, very clearly, that a woman is entitled to say No to sex and that applies whether she is married to the man or not. In the decision that I gave on 19 June 2013, I explained what a true consent was and clearly that was not given here; and you knew it. It was the submission by your wife to what she knew was inevitable and because she feared that if she resisted she would receive a further beating from you.
   
8. You had sex with her without any regard to whether she consented or not. After you had had sex with her, the two of you then had to walk back to the main road - a distance of some five kilometres. The beating that your wife had received was so severe that she said she went "to sleep" on two occasions during that journey. She may have struggled, or the interpretation may have struggled, to convey exactly what she was saying but in view of the way that she subsequently presented in Court, it is clear that she must have collapsed on those two occasions rather than just felt tired and decided to have a sleep.
   
9. When you got to the main road, you hailed a bus to take you to your home at Teouma. When you arrived at your home, you went in ahead but your wife ran off down to the main road and got another bus to her sister's home in Fresh Wota. She arrived battered, bruised and bloodied. That was, of course, as a consequence of the serious and severe beating that you subjected her to. She was taken to a hospital that night.
   
10. When the complainant came to Court to give evidence she had to be helped into Court. The trial was supposed to start on 17 June 2013 but the complainant was too unwell that day to attend. The prosecutor at the trial, Mrs Harrison went out and met with her and explained to her that the Court would ensure that she was able to give her evidence with significant support. The beating had left her not just a distraught woman but a destroyed woman. She was here in Court with the support of her family. It required two men to help her to the witness chair that she sat in during the course of her evidence. She was unable to walk unaided. Her demeanour was such that she could hardly be heard and the Court interpreter (a very experienced Court interpreter) had to assist by placing her ear close by the complainant's mouth so that she could hear what the complainant was saying.
    
11. I do not have a medical report on the complainant and that is a pity. I had asked for one but apparently there was some issues to do with privacy and the requirement that the complainant's consent be obtained. Rather than delay matters, it is preferable to proceed to finalise the sentence. It is clear that her life has been destroyed by you. You have left her a broken woman who is now not able to function by herself. Whether this was just from the assault or whether it was from the combination of the assault and the sex is by-the-by.
    
12. I treat the violence that you showed her that day as being part and parcel of the rape. It was a continuous course of events that started with the beating and ended with the indignity of the rape.
    
13. It was planned offending on your part. You effectively abducted her in town by duping her to get into the taxi under the false pretence of going around to Fresh Wota to see your children. It is clear further that there was a degree of bravado or showing off as you started to beat her in front of the taxi driver and the other man.
    
14. The complainant was your wife and she was someone to whom you should have shown respect. Instead, you forced her suffer the indignity of being beaten in front of other men, raped and then forced to walk the five kilometres or so from Shark Bay back to the main road. The effect that this has had on this poor woman is such that she may never fully recover from the harm that you have done to her although I accept that I do not have any medical evidence of this. I am simply left with how she presented in court but I certainly did not consider for one moment that she was affecting a disability.
    
15. The pre-sentence report explains that you are currently 34 years of age and you are from the island of Tanna. You had some education and you developed some skills in joinery and carpentry. You could claim to have good relationship with your family and that you participate fully in community activities. Furthermore, that you are entitled to inherit your father's chiefly title.
    
16. You say also that you have been assaulted by your wife's brothers presumably because of how you treated their sister. You say that you are still experiencing pain in your head as a result of this along with bruising to you rips and broken teeth. I have absolutely no sympathy for the harm that you might have suffered from the brothers although I obviously do not condone it. I appreciate that it would have been difficult indeed for them to stand back after they had seen the harm that you had caused their sister.
    
17. You explain to the probation officer that you committed this offence as a result of jealousy as your wife (you put it) would abscond for months over small conflicts. That is of course no excuse.
    
18. This is very serious offending of its type. It requires a sentence that reflects the seriousness of the offending and what appears clearly to be the damage caused by you to your wife which are clearly long term injuries of either a physical or emotional nature; or probably both.
    
19. I adopt a starting point of eight years' imprisonment bearing in mind that this a case involving relationship between a man and a woman and thus you were a person that had a responsibility to her, a responsibility to care for her and keep her safe as a member of your family and you failed completely in that respect.
    
20. There are other aggravating features. It was certainly offending that had a degree of planning although perhaps the decision to abduct her was somewhat on the spur of the moment. However, there is no doubt that your decision to dupe her in to getting into the taxi was to enable you to take her away to an isolated spot and to beat her. I am in no doubt that when you left Port Vila for Shark Bay you intended to subject her to a serious beating for having the temerity to stay away from your home and from you.
    
21. The abduction, the deception, and the violence that preceded the rape warrant an uplift of a further four years.
    
22. While there is a separate offence of intentional assault that can be dealt with more as an aggravating feature to the rape.
    
23. For these reasons, I consider that an offending end point of 12 years' imprisonment should be adopted.
    
24. There does not appear to be any sign from your earlier days that you had this propensity to violence. It appears from the pre-sentence report that you were well regarded in your community. You have no previous convictions. It appears that you are truly remorseful and that you claim some insight into the harm that you have done to your wife and how that occurred.
    
25. You are also prepared to undertake a custom reconciliation ceremony although it appears that that is unlikely to occur except perhaps between the families simply because you are going to be separated from your family for quite some time.
    
26. However, for all those personal matters I am going to allow you two years off the sentence that would otherwise be imposed on you. That leaves me with an end sentence of ten years' imprisonment which I consider to be a fair sentence for serious offending such as this.
    
27. You pleaded not guilty to this offending and subjected your wife to the ordeal of having to give evidence and relive this bruising encounter with you. Accordingly, there can be no further concession made as would have been the case if you have pleaded guilty right from the outset.
    
28. On the charge of sexual intercourse without consent you are sentenced to ten years' imprisonment. That sentence is to be deemed to have commenced on 6 November 2012 when you were taken into custody.
    
29. On the charge of assault you are sentenced to 6 months' imprisonment.
    
30. You have 14 days to appeal this sentence if you do not accept it.
    

BY THE COURT