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Public Prosecutor v Georges [2004] VUSC 68; Criminal Case 018 of 2004 (12 August 2004)

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

Criminal Case No. 18 of 2004

PUBLIC PROSECUTOR

-v-

SAKI SAM GEORGES

Coram: Chief Justice Lunabek

Mr. J. M. Timakata for Prosecution
Mr. Peter Bartel for Defendant

SENTENCE

This is the sentence of the Defendant Saki Sam Georges. He pleased guilty and was convicted of 3 counts of rape, contrary to Section 91 of the Penal Code Act [CAP. 135] and 1 count of attempted rape contrary to Sections 28 and 91 of the Penal Code Act.

The Defendant is from Paama Island, he lives at Bangbang village, Efate. On May 2001 he attempted to have sexual intercourse with his daughter, the complainant.

At the time of the attempted rape, the complainant was 12 years old. The Defendant threaten her to kill her with his gun.

Sometime about May 2002, the Defendant after whipping the complainant forced the complainant to remove her clothes. His wife was not there. He forced the complainant and had sexual intercourse with her in the couple's bedroom.

Again on 31 March 2004, the Defendant had sexual intercourse with the complainant in the night.

On 7 April 2004, the Defendant asked his daughter for sex. She refused. He whipped her and removed her clothes and had sex with her against her will.

From May 2001 to 7 April 2004, the Defendant committed separate acts of sexual abuse by raping his daughter until the matter is reported to the police.

On separate occasions as charged, the Defendant used intimidation, threats and violence (assaults) including physical force to have his way with his daughter.

When the matter was heard in Court the complainant is 14 ½ years .

Rape is a very serious offence.

The principle of law applied to rape offences are applied to attempted rape offences. The guideline judgment is set in the judgment of the Court of Appeal in PP-v-Maslea Scott & Others, [2002] VUCA 20; Criminal Appeal Case No. 2 of 2002 confirming the guideline in PP -v-Ali August [2000] VUSC 73; Cr. Case No. 14 of 2000. The following aggravating factors exist in the present case:

▪ The Defendant as a father was in a position of authority and trust.

▪ The complainant is a child (12 years of age) at the start of those incident until the matter was heard in Court (14 ½ years old).

▪ The Defendant used intimidation, assaults, threats and physical force against his young, weak and vulnerable daughter.

▪ The actions of the Defendant were repeated and only stopped after the matter was reported to police

The defence accepts that this is a serious matter. They accept what the prosecution says.

The Defendant pleaded guilty on the first opportunity. It is said the Court must take that into account as the Defendant's guilty plea save the times and costs and the embarrassment of putting the complainant into relieving bad episodes she went through.

The Defendant is 39 years of age. He has previous convictions. He is married and has 6 children including the complainant. The other children aged from 15, 10, 8, 3 and 1 year and 1 month. He works in the garden. He is the only income winner.

The Defendant informs the Court through counsel that his wife had had rheumatoid arthritic to her lower upper and lower limbs. She suffers for bad assault caused by another man on her not the husband.

At the time of the offences the complainant was 12 years, 13 and 14 ½ years. The complainant daughter has gone her own way. She is now married.

The Defendant knows he does wrong. He had bad thought against his daughter. He is sorry about that.

After offending, he went and organized a custom settlement ceremony involving a number of chiefs. A document containing the signatures of 7 chiefs is shown to the Court.

Mr. Bartel asks the Court to accept that document on the basis of Section 119 of the Criminal Procedure Code Act [CAP. 136] in that it allows the Defendant to say this.

The custom settlement was brought about and has been achieved with the following:
The defendant provided:

- 1 pig
- 5 mats
- 10, 000Vatu
- Kava heads and roots

The complainant daughter was present at the custom settlement ceremony and she received a pig, 10, 000 Vatu and the mats.

The pig was then killed and the feast was enjoyed by participants.

At the custom settlement ceremony, in order to clear and clean the faces, the Defendant expresses his apologies to the daughter and his daughter accepted the Defendant's apologies for what he did to her.

The complainant daughter was in Court with her mother during counsel submissions.

She confirmed at the request of the Court the custom settlement ceremony done by his Father/Defendant to her. She confirmed she accepts his apologies and she will speak to her father again. She confirmed also that she received from her father/Defendant, a pig, 10, 000 Vatu cash and the mats. She accepts them all.

Rape is always a very serious offence. The maximum penalty is life imprisonment under section 91 of the Penal Code.

The guideline judgment is set by the Court of Appeal in Maslea Scott [2002] VUCA 20; Criminal Appeal Case No. 7 of 2002.

I apply this guideline judgment in this case. The following are the aggravating factors that I must consider: -

• First, the Defendant is a father and as such he is in a position of authority and trust

• Second, the complainant/girl is a child when the rape offences started on May 2001 until April 2004 when she is 14½ of age. She is very young.

• Third, the Defendant used intimidation, violence, assaults, threat by the use of a gun and physical violence against his young, week, and vulnerable daughter.

• Fourth, the offences of rape by the Defendant on his daughter were repeated and only stopped after the matter was reported to Police.

Applying the guideline judgment, the starting point for this offence is 5 years.

The circumstances of this case warrant that the starting point of 5 years imprisonment must be substantially increased to reflect the seriousness and the aggravating features under which the Defendant has committed these offences. The increase is up to 12 years. I now consider the mitigating factors in the light of the term of 12 years imprisonment.

The Defendant pleaded guilty. One Third (⅓) of this sentence will be deducted.

I also consider Section 119 of the CPC which provides as follows: -

"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 done 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 there by occasioned, postpone sentence for such purpose. "

I am satisfied that there is a genuine custom settlement ceremony by the Defendant to his daughter/Complainant. He expresses his apologies to her for the atrocities he did to her. She accepts his apologies. She accepts also the compensation or reparation made to her by her father under custom.

Once I am satisfied, I am bound to take account of the compensation or reparation made by the offender under custom in my assessment of the quantum of penalty to be imposed on the Defendant. That is what I do.

I then ask the question as to what and the extent of the account of custom reparation or compensation?

I invite counsel to make submissions on that point.

Counsel for the Defendant submitted to this effect. If a Court is prepared to discount ⅓ of a sentence on the basis of a guilty plea, it is a fact that the Court does not know that Defendant and has no relation with that Defendant before until he/she came before the Court.

If so, why should the community who knows a Defendant and regulates the life of that person through his/her family says they have prepared custom ceremony settlement to clear their faces, made apologies, be treated differently or less than ⅓ of the sentence.

I consider that submission and I accept it. The quantum of penalty will be further reduced by one third (⅓) to reflect the custom settlement ceremony.

The sentence of 12 years is first reduced by ⅓ to reflect the guilty plea.

The balance of the terms of imprisonment is further reduced by ⅓ to reflect the custom settlement ceremony under Section 119 of the Criminal Procedure Code Act [CAP. 136].

The Defendant is hereby sentenced to 5 years imprisonment and 4 months and 4 weeks imposed on each and all the 4 counts as charged against the defendant. The sentences are to be served by the Defendant, Saki Sam George concurrently.

The Defendant is to serve, 5 years and 4 months and 4 weeks imprisonment with immediate effect.

Dated AT PORT VILA this 12th day of August 2004

BY THE COURT

Vincent Lunabek
Chief Justice