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Public Prosecutor v Jack [2004] VUSC 53; Criminal Case 003 of 2004 (27 August 2004)

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

Criminal Case No. 03 of 2004

PUBLIC PROSECUTOR

-v-

SAM JACK

Coram: Chief Justice Lunabek

Mr. Eric Csiba for Prosecution
Mr. Peter Bartels for Defendant

SENTENCE

This is the sentence of the defendant, Sam Jack. The defendant is charged with two (2) offences. The first offence is that of Kidnapping, contrary to Section 105(b) of the Penal Code Act [CAP. 135] and the second is that of Rape, contrary to Section 91 of the Penal Code Act [CAP. 135].

The defendant pleaded guilty to the offence of Kidnapping as charged in Count 1 and he pleaded not guilty to the offence of Rape as charged in Count 2.

On 6th August 2004, he was found guilty and convicted of the offence of rape, contrary to Section 91 of the Penal Code.

The brief facts are summarised as follow:

On 24 December 2003 at about 9.00AM o’clock in the evening the defendant had few shells of kava and consumed also alcohol until the morning of 25 December 2003.
On 25 December 2003, he took a red bus and arrived at Naburu. There, the bus stopped on the side of the road, the complainant woman and her sister were there. The defendant got down from the bus. He then grabbed the hands of the woman and forced her entrance inside the bus. The defendant did not know the woman nor the woman knew the defendant.

The woman attempted to jump out from the bus but she was prevented by the defendant from doing so.

The defendant took the woman by force without her will inside the bus. He then asked the bus driver to drop him and the woman first.

They were about 30 minutes in the bus. At Hippic Road, the defendant stopped the bus, paid the bus fares and pulled the woman down the bus. He dragged her into the bushes. She tried to run away. He chased her and pulled her into the bushes. She felt. The stones cut her leg. The defendant threatened her to suck his penis. If she refused he will kill her and nobody will see her. At the time his penis was soft but after the woman sucked it, it became erected. The defendant penetrated her while the woman laid on the ground. Again and while she was asked to bend her body down, the defendant came behind her and penetrated her.

At the time of the incident, the woman was terrified. She was frightened, upset and thought the defendant will hurt her. She sustained injury inside within the lip of her vagina. This was due to the defendant forceful penetration of her vagina.

The defendant is Sam Jack from Tanna Island. He lives at Ohlen area, Vila. He is 25 years old. He has been married for 10 years. They have two (2) children of 3 years and 7 months, respectively. The defendant is employed in a construction business.

The defendant is a first time offender. He has no previous convictions. He is the only bread winner of his family and has a young family. The Court takes all that into account.

The defendant says that this case is different in the sense that the defendant pleaded guilty to the offence of kidnapping and he had tried to have sexual intercourse with the complainant. The defendant mentioned that he was ready to plead guilty to attempted rape. That is the circumstances under which the defendant places himself in.

The defendant commits two (2) different offences which carry different punishment provisions. First the offence of kidnapping as charged in count 1 and upon which the defendant pleaded guilty contrary to Section 105(b) of the Penal Code. It carries a maximum penalty of 10 years.

The second is rape, contrary to Section 91 of the Penal Code which carries a maximum penalty of life imprisonment.

The two (2) offences form part of one set of circumstances. The defendant was heavily influenced by alcohol and kava which he has consumed on 24 December 2003.

The defendant, after he was found guilty and convicted of the offence of rape, approached his custom chief, Chief Blaise in order for him to approach the complainant’s chief with a view to perform custom ceremony. The complainant’s chief and family refused to take part in the custom ceremony. It is said for the defendant, the defendant wanted to take advantage of Section 119 of the Criminal Procedure Code Act [CAP. 136]. He was unable to do that because the complainant and her family refused to take part in a custom ceremony.

Section 119 of the Criminal Procedure Code provides:-

“119. Upon the conviction of any person for a criminal offence, the Court shall, in assessing the quantum of penalty to be imposed, take account of any compensation or reparation made or due by the offender under custom and if such has not yet been determined, may, if he is satisfied that undue delay is unlikely to be thereby occasioned, postpone sentence for such purpose.”

Section 119 of Criminal Procedure Code Act does not mandatorily require the defendant to do custom ceremony nor does it require the complainant and her family to accept a custom ceremony due by the defendant. What Section 119 of Criminal Procedure Code simply requires is that if a custom settlement ceremony is intended to be performed, the Court may allow time for it to be done and if it is done, the Court shall in assessing the quantum of penalty to be imposed, take account of any compensation or reparation made or due by the offender under custom.

The defendant understands that this is a serious matter, particularly the rape charge.

The Court takes note of the fact that the defendant wanted to plead guilty for attempted rape. However in Count 2, he was charged, convicted and sentenced for the offence of rape, contrary to Section 91 of the Penal Code. The appropriate sentence for the offence of rape is as set out in the guideline judgment of Court of Appeal judgment of PP v. Maslea Scott and Jeremiah Tula, Criminal Appeal Case No.2 of 2002 which is applied in this case.

In this case, the following constitute the aggravating factors:-

▪ The threats of killing the complainant and no body will see.
▪ The bruises on her private part.

The starting point is 5 years of imprisonment. This sentence is increased from 5 to 7 years imprisonment to reflect the aggravating factors.

I have applied my mind to the mitigating factors and what the defence counsel says on behalf of the defendant during his submissions. However, the circumstances of this case do not show any basis for mitigation in respect to the offence of rape.

The defendant, Sam Jack, is sentenced to 7 years imprisonment in respect to the offence of rape, contrary to Section 91 of the Penal code as charged in Count 2.

As to the charge of Kidnapping, contrary to Section 105(b) of the Penal Code, the appropriate sentence in this case is 6 months imprisonment.

The defendant pleaded guilty to that offence. This will be discounted by ⅓ in his favour. The defendant be sentenced to 2 months imprisonment for kidnapping the complainant on 25 December 2003 as charged in Count 1.

As the two (2) offences form part of one set of circumstances, the defendant shall serve the two (2) sentences of (a) 7 years for rape and (b) 2 months for kidnapping concurrently. The Court is informed that the defendant was arrested and kept in custody from 26 August 2004. This will also be deducted in his favour.

This means that the defendant shall serve 7 years imprisonment starting from 26 August 2004.

Dated AT PORT VILA this 27th day of August 2004

BY THE COURT

Vincent LUNABEK
Chief Justice