Public Prosecutor v Malkorkor [2015] VUSC 147; Criminal Case 58 of 2015 (16 October 2015)

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

Criminal Case No.58 of 2015

PUBLIC PROSECUTOR

V

1. Jean bi malkorkor
2. Douglas david
3. George seth
4. Allan james

Coram: Justice D. V. Fatiaki

Counsel: Mr. S. Blessing for the State
Mr. H. Vira for the defendants

Date of Sentence: 16 October 2015

SENTENCE

1. The four (4) defendants were jointly charge with 2 others with an offence of Sexual Intercourse Without Consent. They each pleaded guilty and were convicted and remanded into custody on 25 August 2015. One of the defendant's co-accused (Jonah Moses) failed to appear and a bench warrant was issued for his arrest. The other (Kiki Mahit) was discharged after the prosecutor entered a "nolle prosequi".
   
2. Pre-sentence reports were ordered at the request of defence counsel and I am grateful for the assistance provided in them. I have also received helpful sentencing submissions from both counsels that I shall be referring to in more detail later in this sentence.
   
3. The brief facts of the case are that on the evening of 17 October 2014 the complainant had accompanied some friends to the Flaming Bull nightclub. At about 3 a.m. the complainant left the nightclub alone and made her way home to Freshwota 2. On the way she met a male friend who agreed to escort her home. They followed a dirt path that ran beside the Port Vila cemetery. On the way they heard some boys yelling after them and pursuing them. Eventually the boys caught up with them and after a brief exchange they chased the complainant's male friend away and restrained the complainant. One of the boys was heard to say: "ale yumi line up" which terrified the complainant causing her to cry. The complainant was slapped and warned that she didn't stop crying or resisted then: "... bae mifala ie tanem breakem neck blong yu, kilim ded yu mo karem aot guts blong yu long ples ia".
   
4. The complainant was forced up a slope to an isolated area away from the track where she was held down by the boys – one defendant held her left hand; a second held her right hand; a third covered her mouth and a fourth undressed her and had full sexual intercourse with her until he ejaculated into her vagina. He was followed by 4 other defendants each taking turns in having sexual intercourse with the complainant.
   
5. As the fourth defendant was having intercourse with the complainant another defendant inserted his penis into the complainant's mouth and forced her to have oral sex until he ejaculated in her mouth. After the first four defendants had finished with the complainant they ran off leaving her with the last assailant. Before the last assailant finished intercourse, the complainant's male escort who had been earlier chased away, returned with reinforcements and they managed to arrest the last assailant.
   
6. The incident was reported to the police and all 6 defendants were later arrested and interviewed on 27 October 2014. Under caution, each of the defendants admitted having sexual intercourse with the complainant including an admission of oral intercourse by Allan James. All agreed that what they did to the complainant was "rabis fasin" and all claimed to be acting under the influence of liquor at the time. Each of the defendants were asked if they were acquainted with or knew the complainant before the incident and all denied knowing her ("no mi no save hem"). In other words the complainant was a complete stranger to them. Let me also say at once that being drunk is not an excuse for the commission of the serious offence of rape. If you can't handle the effects of alcohol, then don't drink.
   
7. The complainant besides being medically examined also made a Victim Impact Statement the day after the incident, wherein she described the effects of the incident on her as follows:
   

"Afta we ol boy ia oli mekem problem long mi, mi harem se inside long body blong mi inogud, mi fraet long boyfriend blong mi, moo l family blong mi. Mi fraet tu blong kasem wan rabis sick we bai ol boy ia ipassem long mi mo mi fraet blong gat bel (pregnant). Mi feelem mi shame blong luk ol fren blong mi sipose oli harem news, mi fraet tu blong walkabaot mo ko lo club mo mi feelem tu long mi se mi fraet long ol boy from mi no save everi boy ia we oli mekem trabol long mi ...".

8. At an early stage the Court became concerned to establish as accurately as possible the birth dates of the defendants, and the prosecution was directed to obtain their birth records. These were later provided and they reveal the following:
   
   • Jean Pierre Malkorkor was born at VCH on 08 October 1996 making him barely 18 years at the date of the offence;
     
   • Douglas David was born on 28 October 1996 also barely 18 years at the date of the offence;
     
   • George Seth's registered name is George Pellam and he was born on 13 August 1992 making him 22 years at the time of the offence; and
     
   • Allan James's registered name is Allan Ison Johnny born on 10 April 1989 which would make him the eldest in his group at 25 years of age at the time of the offence. However, the pre-sentence report records his Date of Birth as: "10/04/1997" which is 8 years different from the date recorded in his birth certificate. Both could not be right and giving the defendant the benefit of the doubt and given his physical appearance and stature where he is the smallest in the group, I shall treat him as being almost 17 years at the time of the offence.
     
9. In its written submissions the prosecution in seeking an end sentence of between 5 to 6 years imprisonment highlights the following aggravating factors:
   
   • Threaten her with violence to keep her quiet;
   • Dragged the complainant off the road to a secluded area;
   • The complainant was alone and vulnerable.
     
10. Defence counsel whilst conceding the aggravating factors, nevertheless explains, that the defendants committed the offence because of their inability to control their sexual feelings in an appropriate manner, as well as "peer pressure" from within the group. All are first offenders and all admitted the offence at the earliest opportunity and are remorseful and regret the incident.
    
11. Both counsels also confirm the performance of a custom reconciliation ceremony between members of the defendants' families and the complainant and her family which was graciously received and accepted by the complainant who told the probation officer that although she had forgiven the defendants.
    
12. The ceremony was witnessed by a probation officer and involved the handing over to the complainant's family of the following traditional gifts and items:
    
    • 16 mats;
    • 25 rolls of calico material;
    • 6 baskets of kumala;
    • 2 baskets of taro;
    • 3 bundles of banana;
    • 1 bag of manioc;
    • 2 plastic prepared kava;
    • 1 buluk;
    • Cash money of VT30,000; and
    • 2 x 15kg bags of rice.

In total, the items were worth close to VT100,000.

13. In considering the appropriate sentence in this case I am very conscious that the defendants were teenagers aged between 17 years and 19 years of age at the time of the offence. All are first offenders and all live with their parents. All pleaded guilty at the first opportunity and frankly admitted their respective roles when interviewed by the police. They have not only saved the complainant from having to relate her ordeal in court but, additionally, the defendants considerably assisted the police with their inquiries. All are remorseful and promise never to re-offend and all were well-behaved while remanded in custody for over a month.
    
14. I am also mindful of the judgment of the Court of Appeal in Public Prosecutor v. Scott [2002] VUCA 29 where the Court of Appeal said:
    

"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."

And later:

"... Where a rape is committed by two or more men acting together, ... or by a person who abducts the victim and holds her captive the starting point should be eight years. ..."

15. Consistent with the above guidance, I impose on each defendant a starting sentence of 8 years imprisonment which is raised to 9 years as a result of the aggravating factors earlier identified in this judgment including the chasing of the complainant's male escort.
    
16. From that starting sentence and in recognition of their early guilty pleas, I reduce the sentences by 3 years and by a further 18 months for the substantial custom reconciliation ceremony including the almost 2 months the defendants were remanded in custody thereby giving an end sentence of 4 years and 4 months imprisonment.
    
17. As this is the defendants' first offence and they being relatively young offenders aged under 20 years of age, I turn to consider whether this is an "exceptional" case for which a suspended sentence might be appropriate. In this regard I am required to consider all the circumstances, the particular nature of the offence committed and the character of the offenders. It was an opportunist crime committed by the defendants on a defenceless young woman returning home in the early hours of the morning after attending a nightclub. Her male escort was chased away by the defendants leaving the complainant at the mercy of the defendants who clearly intended to have sexual intercourse with her. She was taken to a secluded area by the defendants who then raped her in turn. She was also assaulted and threatened to keep quiet and was subjected to the additional indignity of forced oral intercourse by at least one of the defendants who ejaculated in her mouth.
    
18. The offence was a cowardly "gang rape" which left the complainant with body aches and pain and fearful that she had been infected or might become pregnant. She experienced great personal shame and her relationship with her boyfriend completely broke down. She continues to experience nightmares from her ordeal and is fearful to walk around especially at night. Fortunately the complainant has suffered no permanent physical injuries.
    
19. For their part the defendants are all relatively young first offenders who live with their parents. Although unemployed the defendants are considered useful and helpful members in the community. They all have pleaded guilty and had earlier admitted committing the offence to the police. From the individual pre-sentence reports I got the distinct impression that the offence was "out-of-character" and was the direct result of "peer pressure" and because the defendants were acting together as a "pack" fueled by alcohol. I believe that had the defendants been alone that night, the offence would not have been committed. This much was accepted by the defendants when given the opportunity to address the Court in person.
    
20. In my view the remand of the defendants in custody since their conviction for over a month has been a salutary lesson to them and their families. In addressing the Court each defendant expressed his sincere remorse for what he did and promised never to re-offend. Each asked to be given another chance to change his life and all indicated that in prison they were locked in a cell and lost their freedom and contact with their parents and families. Three of the defendants' fathers who were also present in court also promised to pay closer attention to their sons' welfare and upbringing and to help them to become law-abiding individuals.
    
21. There is little doubt in my mind that a sentence of immediate imprisonment is likely to be destructive of the lives and rehabilitation of the defendants in exposing them at this impressionable young age, to hardened criminals in an adult prison without separate facilities or programs for young offenders.
    
22. I have also considered the combined effects of Sections 37 and 54 of the Penal Code and the provisions of the Convention on the Rights of the Child ["CRC"] which has been expressly incorporated into the domestic laws of Vanuatu by the Convention on the Rights of the Child (Ratification) Act No. 26 of 1992 and which defines a "Child" as being below the age of 18 years.
    
23. Of particular relevance to this case are: Article 37 which provides:
    

"States Parties shall ensure that:

(a) ...;

(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;

(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;

(d) ...."

and Articles 40(1) and (4) which reads:

(1) "States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.

...

(4) A variety of dispositions, such as care, guidance and supervision orders, counselling, probation, foster care, education and vocation training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence."

24. The defendants all struck me as being somewhat naïve and easily led astray. At such an impressionable age I ask myself, should they be sent to prison or is there an equally suitable non-immediate custodial alternative which protects and safeguards society and at the same time will ensure the successful rehabilitation and reintegration of the defendants within the community? In my view, in the case of young first offenders there can rarely ever be any conflict between the general public interest and that of the offender. If I may say so, society has no greater interest than that its young people should grow into useful law-abiding citizens and the difficult task of the Court is to determine what punishment or treatment gives the best chance of achieving that end. The realization of that objective is the primary and by far the most important consideration in the sentencing of young first offenders.
    
25. I am also mindful of the custom reconciliation ceremony that was performed by the defendants' chief, parents and family members whilst the defendants were remanded in custody which is an indication of the concern and support that the defendants will continue to receive from their chiefs and their families and the wider community should they be returned rather than incarcerated. Additionally, the complainant herself has affirmed the reconciliation and informed the probation officer that she has forgiven the defendants. In the face of such magnanimity should the Court, nevertheless insist on retributive punishment? I think not. Indeed, it is difficult to imagine how, in the particular circumstances of this case, the public interest could be better served or advanced by the destruction a long prison sentence would almost certainly have, on these young men's lives and future prospects.
    
26. It has been said that a judge who sends a young man to prison for the first time takes on a grave responsibility nor is it practical or desirable to lay down any general rule(s) but, in many cases, it is desirable to take a risk to save a young man or woman from the (undesirable) consequences of prison. Is this such a case?
    
27. After careful consideration of all the circumstances and mindful that this Court is in this case, sentencing young first offenders to prison, and at the risk of appearing lenient, I consider that the protection of society would be best served by suspending the end sentence of imprisonment for a period of 3 years. In addition each defendant is ordered to perform 200 hours of community work.
    
28. I am also satisfied that regular supervision would reduce the likelihood of further offending by the defendants and accordingly each defendant is ordered to serve a sentence of supervision for 24 months with the following special conditions:
    
    • (a) Not to consume alcoholic drink;
      
    • (b) Undertake and complete the Niufala Rod Programme; and
      
    • (c) Undertake sexual and spiritual counselling as required by his probation officer.
      
29. Each defendant is warned that allthough suspended prison sentence means that he will not be returned to prison today, it does mean that a prison sentence has been imposed on him and remains in existence for the next 3 years and, if the defendant is convicted of another offence at any time during the next 3 years, then, he can expect no leniency and he will be returned to prison to serve this prison sentence of 4 years 4 months imprisonment. Plainly whether that happens or not, is entirely in each defendant's hands and I urge each defendant with the help of their family and community, not to miss this final chance to change their lives and become useful and law abiding members of society.
    
30. If any defendant doesn't agree with this sentence he has 14 days within which to appeal it to the Court of Appeal.
    

DATED at Port Vila, this 16th day of October, 2015.

BY THE COURT

D. V. FATIAKI
Judge.