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Public Prosecutor v Frank [2004] VUSC 67; Criminal Case 004 of 2004 (11 August 2004)

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

CRIMINAL CASE No. 04 of 2004

PUBLIC PROSECUTOR

-v-

SIMEON FRANK
DANIEL KALMAIRE
KALFAU ALICK KALMAIRE
ADAM SILAS ISMAEL
JOHN ISHMAEL

Coram: Chief Justice Vincent Lunabek

Counsel: Mr. Liam Shaw for the Public Prosecutor
Mr. Felix Laumae for the defendant, Simon Frank
Mr. Bill Bani for the defendant, Daniel Kalmaire
Mr. Nigel Morrison for the defendant, Kalfau Alick Kalmaire
Mr. Ronald Warsal for the defendant, Adam Silas
Mr. Peter Bartels for the defendant, John Ishmael

SENTENCE

This is the sentence of the following defendants: Simon Frank, Daniel Kalmaire, Adam Silas Andrew, John Ishmael and Kalfau Alick Kalmaire.

The defendant Simon Frank pleaded not guilty to the offence of Aiding Rape, contrary to Sections 30 and 91 of the Penal Code Act [CAP. 135]. On July 2004, he was found guilty and convicted as charged.

Section 30 of the Penal Code states as follows:

“Any person who aids, ... the commission of a criminal offence shall be guilty as accomplice and may be ... convicted as a principal offender.”

Section 32 of the Penal Code Act [CAP. 135] provides that:

“Subject to any expressed provision of law, an accomplice and a co-offender shall be punishable in like manner as a principle or sole offender.”

Section 33 of the Penal Code says as follows:

“Any accomplice or co-offender in the commission or attempted commission of an offence shall be equally responsible for any other offence committed or attempted as a foreseeable consequence of the complicity or agreement.”

The defendants: Daniel Kalmaire, Adam Silas Andrew and John Ishmael were found guilty and convicted of the offence of rape, contrary to Section 91 of the Penal Code Act [CAP. 135].

The defendant Kalfau Alick Kalmaire pleaded guilty and now convicted of the offence of rape, contrary to Section 91 of the Penal Code Act [CAP. 135].

The maximum penalty imposed by the Penal Code for the offence of rape, contrary to Section 91, is life imprisonment.

The offences of aiding rape and rape constitute acts of similar nature committed by one or more defendants and are connected with one another, in the time and place of their commission and form part of the same transaction of criminal enterprise.

This was the same situation in the present case on 17 November 2003 at a vacant block of land above Mangoes Resort on Wales Street, Hospital Area at Port-Vila.

The summary of the facts are set out as follows:

1. In the afternoon of 17 November 2003, there was a discussion between Simon Frank and Daniel Kalmaire where Daniel Kalmaire indicated that he wanted to have sex with the complainant (C), a former girlfriend of Simon Frank, Simon Frank agreed to arrange the sex to take place.

2. Simon Frank, Daniel Kalmaire, Kalfau Alick, Adam Silas spoke about the plan for sex to take place with (C) in the early evening of 17 November 2003 whilst standing at a garage at Seaside Police.

3. Simon Frank told a friend Tari to fetch (C) from her house to come to him. (C) came and Simon Frank told her to come with him to find one of his friends.

4. Daniel Kalmaire, Adam Silas, Kalfau Alick and John Ishmael walked ahead of the (C) and Simon Frank to a vacant block of land above Mangoes Resort on Wales Street, Hospital area. The vacant land had long grass and bushes. The men hid in the vacant block awaiting Simon Frank.

5. Simon Frank spoke to the (C) as they walked up Wales Street about looking for a friend. As they approached the vacant block, Simon Frank indicated that he wished to have sex with the (C).

6. The (C) agreed to have sex with Simon Frank and they walked into the vacant block of land where Simon Frank took off his shirt, placed it on the ground and the (C) lay on the shirt. She took off her panties and trousers and Simon Frank and the (C) had consensual sexual intercourse.

7. After the intercourse, Simon Frank put his pants on and the (C) was getting up to put her clothes back on when Simon Frank told her that she should not put her pants on yet because he had a friend that wanted to have sex with her.

8. The (C) told Simon Frank that she did not want to have sex with a friend of his and Simon Frank told her to tell the man when he came.

9. Daniel Kalmaire then came towards the (C) who was at that time standing up and ready to walk towards the road.

10. The (C) did not want to have sex with Daniel Kalmaire, Adam Silas came from the bushes and assisted Daniel Kalmaire to pull her to the ground and held her hands tight and her mouth closed whilst Daniel Kalmaire had sexual intercourse with the (C).

11. After Daniel Kalmaire had sex with her, Kalfau Alick had sex with her whilst Adam Silas held her. She did not consent to the intercourse.

12. After Kalfau Alick had sex with the (C), Adam Silas had sex with her. She did not consent.

13. John Ishmael then had sex with the (C). She did not consent.

14. A friend of Simon Frank, Kalfau Alick, was also there and the other men told him that it was his turn. Ben Alick told them that he didn’t want to have sex with her.

15. After Daniel Kalmaire, Kalfau Alick, Adam Silas and John Ishmael had had sex with the (C), Simon Frank returned to her and assisted her to find her panties because Daniel Kalmaire had thrown them away in the bushes.

16. Simon Frank walked with the (C) through the hospital grounds.

17. The (C) did not go home but went to her friend Jesse Steele’s place where she woke her up and cried to her and told her that she had been raped.

18. The (C) did not tell her parents at first, but eventually, she told her older sister who told her parents. She then went to the Police station made a statement on 20 November 2003.

19. The (C) was examined by Dr. Cecil Alla on 19 November where he examined her and found bruising on her lower hips and irritation to her urinary tract.

Mr. Felix Laumae made the following submissions on behalf of the defendant Simon Frank. Simon Frank is 21 years of age. He finished school at the National Institute of Technology of Vanuatu (I.N.T.V.) on year 12.

In the course of the trial, his mother died on 2 February 2004. He is the eldest of a family of three children. He has a brother and sister. They still attend school. He helps his father by doing the cooking and got his brother and sister to school. His father is a policeman.

Simon Frank was found guilty of aiding the other defendants to rape the prosecutrix.

It is said the circumstances surrounding the incident do not involve in anyway that Simon Frank threatened or caused violence on the victim.

It is said also that the circumstances of this case show that this case is different from other similar type of cases. Such as PP v. Steven Iapu, Criminal Case No. 52 of 2002 and PP v. Norman Ligo and Yvonne Namel, [2003] VUSC 39; Criminal Case No. 21 of 2003.

Simon Frank is a first time offender. He has no previous convictions. It is submitted that in this case Simon Frank gave the choice to the victim/complainant whether or not to have sexual intercourse with Daniel Kalmaire. Simon Frank was arrested and placed in custody on 20 November 2003. He was granted bail on 3 February 2004. He was placed in custody after he was found guilty and convicted as charged on 23 July 2004.

It is finally submitted that the appropriate sentence to be imposed on Simon Frank is 1 year imprisonment to be suspended.

Mr. Bill Bani submitted as follows on behalf of the defendant Daniel Kalmaire:

The defendant Daniel Kalmaire is 33 years of age. He was born on 14 August 11971. He regrets deeply about the incident of 17 November 2003.

It is said that there is no aggravating features generated by the defendant Daniel Kalmaire and there is no evidence that he procures and induces the complainant to have sex with her.

Mr. Daniel Kalmaire planned to have sex with the prosecutrix with Simon Frank.

The defendant Daniel Kalmaire is a first time offender. He is a taxi driver. He has a lease arrangement with a company to purchase a Mitshubishi truck. He drives the truck as a taxi from Epule village, Efate to Vila Town. He is a gardener. He paid 60,000VT per month toward the loan agreement for the truck.

He is married and he has three children. His first daughter is at Onesua High School at secondary school. The second is 5 years of age. His last daughter is 2 years of age.

He has a brother and a sister. The brother works on a fishing boat somewhere in Singapore. His parents are very old. His wife does not work. The defendant Daniel Kalmaire is the only bread winner.

It is submitted that the Court must be lenient in sentencing this defendant.

The defendant Daniel Kalmaire expresses his deep remorse of what had happened. This is the first time he spent most of his time in Vila as he is a village man.

Daniel Kalmaire was arrested and placed in custody on 21 November 2003. He was granted bail on 3 February 2004. He was found guilty and convicted of the offence as charged, placed in custody on 23 July 2004.

It is said on behalf of Daniel Kalmaire that although the Prosecution says that the victim was pulled and dragged on the ground, there is no evidence that Daniel Kalmaire did that as such it is said for Daniel Kalmaire that there is no aggravating circumstances.

Mr. Ronald Warsal submitted on behalf of the defendant Adam Silas Andrew as follows:-

Adam Silas is 24 years of age. He lives in a de facto relationship with a woman. They have 2 children. The first child is 4 years old (a boy) and the other (a boy) is 1 year old. They live at Emua, North Efate.

The defendant Silas and his family are subsistence farmers. They do gardening and sell their products at the Market (Vila). His wife (de facto) is doing marketing. Adam looked after the children when his wife came down to Vila to sell her products at the Market.

Adams does not reside in Port-Vila.

It is submitted that Adam Silas went to Seaside, Vila and involved in the incident of 17 November 2003. He was found guilty and convicted by the Court.

Adam Silas is a first time offender. He has 2 younger brothers and a sister. He is the first son of the family. He helps his parents and family to maintain the family. His de facto wife lives at Emua with the children trying to cope with the daily living.

Adam Silas attended the year 12 at Matevulu College. He could not complete his schooling as his parents could not afford to pay for his school fees. He planned to marry his de facto wife but because of this incident and the trial proceedings, the preparations were put on hold.

It is submitted the Court be lenient and reduce the sentence of Adam Silas Andrew to 3 years imprisonment.

Adam Silas was arrested and placed in custody on 21 November 2003. He was granted bail on 3 February 2004. He was found guilty and convicted on the charge of rape and placed in custody on 23 July 2004.

Mr. Bartels submitted on behalf of the defendant John Ishmael as follows:-

The defendant John Ishmael maintained his innocence. It is said the submissions on behalf of this defendant are curtailed. At the time of offending, the defendant was 18 years old. He is now 19. He has no previous convictions. He lives with his family at Seaside. It is submitted that when dealing with young offender, the Court must accept the proposition that a young offender is more deserving of rehabilitation than senior offenders. John Ishmael was arrested and placed in custody on 20 November 2003. He was granted bail on 3 February 2004. He was found guilty and convicted of the offence of rape and placed in custody on 23 July 2004.

Mr. Nigel submitted on behalf of the defendant Kalfau Alick Kalmaire as follows:-

They accept the statement of facts put by the prosecution. The defendant Kalfau Alick is 22 years of age. He lives in the village. He came to Vila and lives with his cousin sister. He has no regular employment. He is remorseful. He is one of several defendants who committed the same offence together on 17 November 2003.

He is the only one to admit his guilt. It is urged upon the Court to take that into consideration. He had that in his conscience and spoke to the Court. He was a participant to the incident.

Kalfau Alick was arrested by Police on 21 November 2003 and made a statement to the Police. In that statement, Kalfau said as follows:-

“It’s true that on Monday 17 November 2003 at around 7PM Simon and Daniel made a plan for us to fuck Elice.

They sent me, Adam and Daniel to wait at the white gate. Simon brought Elice into the yard and we were hiding in the yard in the dark.

After Simon Frank had sex with Elice, Simon came and called out for Daniel to go. When he went I heard Elice cry. When Daniel went, Adam also went.

After Daniel finished [having sex with Elice, he came and called for me to go and fuck Elice and when I went and fucked Elice, Adam held Elice hands tightly. When I had finished, Adam fucked Elice and I went and waited at the road.

I understand that what I did was wrong but it’s already happened.”

Kalfau Alick entered a plea of guilty to the charge of rape contrary to section 91 of the Penal Code [CAP. 135] on 17 February 2004. Kalfau Alick has spent 10 weeks and 4 days in custody in relation to the matter to date (2.11.03 – 3.2.04).

It is submitted on behalf of the defendant Kalfau Alick that the Court will consider any reduction of sentence in respect to him in accordance with the provision of Section 119 of the Criminal Procedure Code.

On 5 August 2004, 5 members of the defendant Kalfau Alick accompanied by some Police Officers went to perform a custom ceremony to the victim complainant and her family. The defendant and his family gave to the victim and her family a mat, chicken, a head of kava and 1,000 Vatu. The Court is informed that the custom ceremony is directly performed by the defendant Kalfau Alick to the victim as an expression of his remorse as to what it is done. The members of the immediate family of the defendant and the complainant are present. The giving of the custom reparation or compensation is done in an extended manner.

The maximum penalty imposed by the Criminal law for the offence of rape is life imprisonment.

The guideline judgment is set down by Public Prosecutor v. Ali August, [2000] VUSC 73; Criminal Case No. 14 of 2000 which was endorsed and confirmed by the Court of Appeal in Public Prosecutor v. Maslea Scott and Jeremiah Tula, [2002] VUCA 20; Criminal Case No. 2 of 2002. I apply the guideline set out in the above judgments.

Rape is always a very serious offence and calls for immediate custodial sentence, save in very exceptional circumstance. The custodial sentence is necessary for a variety of reasons:-

First, to mark the gravity of the offence.
Second, to emphasize and mark the public disapproval.
Third, to serve as a warning to others.
Fourth, to punish the offender.
The last but not the least is to protect the woman.

The length of sentence will depend on the circumstances but these in the case of rape vary widely from case to case.

In the guideline judgment, it is held that where a rape is committed by two or more men acting together, the starting point should be eight (8) years.

The offence of rape should in any event be treated as aggravated by any of the following factors:-

(1) Violence is used over and above the force necessary to commit rape;
(2) A weapon is used to frighten or wound the victim;
(3) The rape is repeated;
(4) The rape has been carefully planned;
(5) The defendant has previous conviction for rape or other serious offences of violent or sexual kind;
(6) The victim is subject to further sexual indignities or pervasions;
(7) The victim is either very old or young;
(8) The effect upon the victim, whether physical or mental, is of special seriousness.

Where any or more of aggravating features are present, the sentence should be substantially higher than the figure suggested as the starting point.

In the present case, the following constitute aggravating features:-

(i) A premeditated/planned sexual assault.

The case involves the planned rape by four offenders, with the fifth offender (Simon Frank) using his position as the former boyfriend of the complainant to lure her to the place where he had advised the other offenders to wait.

(ii) The rape was repeated.

The complainant was systematically raped by the four offenders. The offenders also intended for the witness Ben Alick to have sexual intercourse with the victim.

(iii) The use of force during the rape.

The complainant was thrown to the ground, and held there during the first two rapes. This constituted force over and above that required for that rape.

(iv) The victim was a child (under 18 years).

The victim was 17 years of age at the time of the offence.

I have taken into account of what the defendants say and submissions made on each and all of them by their respective counsel on mitigating factors.

I now consider the sentence of each of the defendants.

▪ The sentence of Simon Frank

He is found guilty and convicted of the offence of aiding other defendants to rape the complainant, contrary to Sections 30 and 91 of the Penal Code.

He is sentenced as a principal offender. The starting point for his sentence is 8 years. There are two (2) aggravating factors against him: a premeditated/planned sexual assault and at the time of the plan, the complainant is 17 years of age.

The starting point of the sentence of 8 years is increased to 9 years of imprisonment to reflect the aggravating features. The appropriate sentence of the defendant Simon Frank is 9 years imprisonment. I now consider if there is a mitigating feature to balance with the aggravating ones. There is no mitigating factor.

The defendant Simon Frank has spent sometime in custody from [20.11.03 to 3.02.04] which is 10 weeks 5 days and from [23.7.04 to 11.8.04] which is 21 days. The total of time spent in custody is 13 weeks and 5 days. They are discounted in his credit.

Simon Frank is therefore sentenced for a term of imprisonment of 8 years 38 weeks 2 days.

I consider whether I can suspend the sentence. There is no compelling reason to suspend the above sentence. The circumstances of this case warrant an immediate imprisonment sentence in the term as set out above. The defendant Simon Frank shall spend a term of imprisonment of 8 years 38 weeks and 2 days with immediate effect.

▪ Sentence of Daniel Kalmaire

He is found guilty and convicted of the offence of rape contrary to Section 91 of the Penal Code. The starting point for the sentence of this defendant is 8 years imprisonment. The following are aggravating factors in respect to this defendant. He was involved in the premeditated/planned sexual assault. He raped the complainant while other defendant held her. The victim was 17 years of age.

I take into account of what the defendant says and submissions on his behalf. However, the circumstances of this case warrant that the starting point for the sentence of this defendant of 8 years be increased to 9 years on the basis of the aggravating factors. There is no mitigating factor to balance with the aggravating ones.

The defendant Daniel Kalmaire has spent sometime in custody from [21.11.03 to 3.2.04] and from [23.7.04 to 11.8.04] which represents a total of 13 weeks 4 days. They are discounted in Daniel Kalmaire’s favour.

Daniel Kalmaire is now sentenced to a term of imprisonment of 8 years 38 weeks 3 days. The circumstances of this case do not warrant for the sentence to be suspended. The defendant Daniel Kalmaire is to serve the sentence of 8 years 38 weeks and 3 days with immediate effect.

▪ The sentence of Adam Silas Andrew

He is found guilty and convicted of the offence of rape, contrary to Section 91 of the Penal code. The starting point for his sentence is 8 years imprisonment. This defendant was the one who held the complainant and thrown her on the ground and held her there while the two (2) others raped her. This was the most serious part of this criminal enterprise. The starting point is 8 years. The following are the aggravating factors against this defendant: He was involved in the premeditate/planned sexual assault. He used force during the rape. He threw the complainant on the ground and held her while two defendants (Daniel Kalmaire and Kalfau Alick Kalmaire) had raped the complainant. The starting point of 8 years of imprisonment is warranted to increase to a term of 10 years to reflect this defendant’s role in the gang rape.

I take into account of what his counsel says on his behalf. There is no mitigation on his favour. Adam Silas has spent sometime in custody from [21.11.03 to 3.2.04] and from [23.7.04 to 11.8.04]. Adam Silas has spent a total of 13 weeks 4 days. They are discounted in his favour.

Adam Silas is therefore sentenced to a term of imprisonment of 9 years 38 weeks 3 days. Adam Silas is to serve this term of imprisonment with immediate effect.

▪ Sentence of John Ishmael

The defendant John Ishmael was found guilty and convicted of the offence of rape, contrary to Section 91 of the Penal Code [CAP. 135]. The starting point for his sentence is 8 years imprisonment. The following are aggravating factors in respect to this defendant: He was involved in a premeditated/planned sexual assault with a victim of less than 18 years of age at the time of the offence. The circumstance of this case warrants that the starting point of 8 years be increased to a term of 9 years.

At the time of the offence the defendant John Ishmael was 18 years of age. I consider this age as a mitigating factor.

I apply my mind to the youth of this defendant in the light of the provisions of the Conventions on the Rights of the Child (CRC) which was ratified by Vanuatu Parliament in (Ratification) Act No. 26 of 1992 and enforced in 3 May 1993.

Article 1 of the CRC says:

“For the purposes of the present Convention, a child means every human being below the age of eighteen years unless; under the law applicable to the child, majority is attained earlier.”

I look at the law applicable for the purpose of ascertaining the meaning of the word “child”.

Section 38(1) of the Penal Code provides:

“38 (1) No person under 16 years of age shall be sentenced to imprisonment unless no other method of punishment is appropriate....”

For the purpose of the Penal Cod, which is the applicable law, a human being of 16 years of age and over, is not a “child”. There is no restriction for a young person of 16 years and over to be sentenced for imprisonment like an adult person for an offence such as rape.

The defendant John Ishmael has spent a total of 13 weeks 5 days in custody from [20.11.03 to 3.2.04] and from [23.7.04 to 11.8.04]. They are discounted in his favour. I take also his young age and part of sentence will be reduced to reflect this.

The defendant John Ishmael is sentenced to 8 years of imprisonment. This sentence is to be served with immediate effect.

▪ Sentence of Kalfau Alick Kalmaire

The defendant Kalfau Alick Kalmaire is found guilty and convicted of the offence of rape, contrary to Section 91 of the Penal Code. The starting point is 8 years. The following are aggravating factors in relation to the defendant Kalfau Alick. He was involved in the premeditated/planned sexual assault.

He raped the complainant when she was held by another defendant. The complainant was 17 years of age at the time of the offence. The circumstance of the case warrants that the starting point of 8 years is increased to 9 years for this defendant to reflect the aggravating features.

I take into account of his guilty plea. The sentence of 9 years be deducted by ⅓. I take also into account of the custom compensation or reparation done by the defendant Kalfau Alick to the complainant on the basis of Section 119 of the Criminal Procedure Code. The balance of the sentence be further reduced by ⅓.

The defendant Kalfau Alick has spent 10 weeks and 4 days in custody from [21.11.03 to 3.2.04]. This is also deducted in his credit.

The defendant Kalfau Alick Kalmaire is sentenced to a term of 3 years 41 weeks and 3 days imprisonment. This sentence is to be served with immediate effect.

Dated at Port-Vila this 11th day of August 2004

BY THE COURT

Vincent LUNABEK
Chief Justice