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Supreme Court of Vanuatu |
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IN
THE SUPREME COURT
OF THE REPUBLIC OF
VANUATU
(Criminal
Jurisdiction)
Criminal Case No. 45 of 2003.
PUBLIC PROSECUTOR
-v-
NEIL ARMSTRONG
Coram: Justice Hamlison Bulu
John Stephens for the
Public Prosecutor
Mr. Bartels for the Defendant
SENTENCE
Mr. Armstrong you appear for sentence today on a charge of
incest and a charge of intentional assault. A charge of incest carries
a maximum
term of imprisonment of 10 years. A charge of intentional assault that causes
damage of a temporary nature carries a maximum
term of 1 year.
Mr.
Armstrong you have pleaded guilty to both charges. For the sake of completeness,
the first charge of incest reads:-
“Incest – Agensem section 95 Penal Code Act Cap 135.
Neil Amstrong yu blong Efate long Saama village mo yu stap liv long Saama village nomo. Samtaem start long manis July 2002 long ol different dates yu bin minim blong stap havem sexual intercourse wetem woman ia Violet Menmen we hemi stret sister blong yu.”
The second charge of Intentional Assault
reads:-
“Intentional Assault – Agensem section 107 (b) Penal Code Act Cap 135.
Neil Armstrong samtaem long manis July 2002 long ol different dates you bin stap minim blong kilim nogud woman ia Violet Menmen wetem wan electric rope mekem se hemi stap kasem kill long bodi blong hem.”
FACTS
The
victim is 21 years old and is your sister. You both come from the same
biological father and mother. Before the commission of
the offences the victim
lived with your parents on Maewo. You lived in Saama Village, Efate with your
wife. In December 2000 you
took your family to Maewo for Christmas holidays with
the other family members who live there.
Sometime in January or February
you returned to Efate. The victim returned with you and lived home with you. The
home had three bedrooms
in which you, your wife and children shared one bedroom,
the victim shared one and the third one was unused.
Sometime in July, on
a Friday, your wife left the home early in the morning to come to Port Vila to
sell products from your gardens
at the Market. Your wife remained in Vila until
she returned home on Saturday, the next day. During your wife’s absence on
the Friday night you entered the victims room and had sexual intercourse with
her. At that time she had retired to the room allocated
to her and was getting
ready for bed. She was still sitting on the bed when you walked in and sat on
the bed with her. There were
no lights and a curtain was used to close off the
bedroom from the other rooms. There was no proper door that can be closed and
locked.
When the victim saw you enter and sat down on the bed next to her
she was surprise and asked you “You
stap mekem wanem ia?”
You answered your
sister “You karem aot clothes blong
yu”. The victim, your sister was frightened and could not believe
what she was hearing. She further asked you in terms to the following
effect
“what are you going to do with
me?”
You answered her to the effect that
“I will have sexual intercourse with
you”. After saying words to that effect you began to undress her
and forced her down on the bed. She tried to push you away but you held
her
firmly by her shoulders so that she could not move. You were completely naked
then and had sexual intercourse with your own sister.
On Thursday of the
following week you went to the garden with the victim to collect food to put
together in preparation for your wife
to take them to the Market in Vila on
Friday. When you got to the garden you again had sexual intercourse with the
victim.
After the first two occasions you continued to have sexual
intercourse on many other occasions. Sometimes in the garden and a few
times in
the house. When you were having sexual intercourse with the victim in the garden
you told her not to tell your wife about
what was taking place between
yourselves.
In May 2003 the victim missed her menstruation and informed
you. You told her not to say that it is your baby, but to say that it
is some
one else’s baby.
On the
7th day of July 2003 you again had
sexual intercourse with the victim before you brought her to Vila to go back to
Maewo.
During the time that your sister came to stay with you at Saama
Village, you repeatedly beat her with a black electric rope
“taem hemi stap ko wokbaot
albaot”. On one such occasion you caused damage of a temporary
nature on the victim.
On her return to Maewo on
12th July 2003 the victim reported
the matter to one of your sisters and her husband and eventually to the
Police.
You admitted the allegations when the Police interviewed you on
10th October 2003. You admitted
that you first had sexual intercourse with your sister sometime in July 2002 and
at your home. Then on
another occasion in the garden. You also admitted that
after the first two occasions sexual intercourse continued on many occasions,
but you could not remember the exact dates. You also stated that your sister
consented to having sexual intercourse with you and
that you did not force her.
You further admitted to beating your sister repeatedly with a black electric
rope when she went “wokbaot
olbaot”.
Sexual Offences are serious offences under the
Criminal laws of the land. Incest is a sexual offence that carries a maximum
imprisonment
term of 10
years.
Aggravating
Factors
The Prosecutor on behalf of the State has urged this Court
to take into account that when imposing a sentence it should not be considered
on the basis that it was a one off incident. The act of sexual intercourse
occurred on many occasions between yourself and the victim
and that this court
when considering sentencing, has to take this into account. The case of
Public Prosecutor –v- Gratien
Bae, [2003] VUCA 14; Criminal Appeal Case No. 3 of 2003 was cited as
authority for this proposition.
Counsel on your behalf urged this court
to note that you are before this court for two matters only. That you have been
charged with
one sexual offence only, ie, incest, and one intentional assault
only. Counsel has urged this Court to disregarded references to
other sexual
Offences and assault offences in sentencing. That you must not be surprised,
ambushed, or put to task for matters which
you have not been charged.
The
charge in Count 1 clearly refers to not only one incident of sexual offence but
to more than one such offence. It states
“...samtaem start long Manis
July
2002 long ol different dates you bin
minim blong stap havem sexual intercourse wetem...”
In your
statement to the Police on 10th
October, 2003 you stated:-
“... First taem mi tingbaot mifala I havem sex insaed long haos blong mifala nomo... long manis July 2002. Afta long first taem ia mitufala istap havem sex fulap taem lelebet, mi no save rememba hamas taem everiwan.”
This is an
admission you made that you had sexual intercourse on more than one occasion
with the victim. I am assisted greatly by
the Court of Appeal in the case
referred to above. In the fourth paragraph on page 3 of the Judgment, the Court
said:-
“It is essential that the court sentence only on the basis of actual offending which is admitted or proved... it is quite unrealistic to treat that as a one off incident by a person who had otherwise been totally blameless in his conduct. On the contrary he had admitted a course of conduct which had gone on for years in which he had used his daughter as a means of obtaining sexual gratification.“
You have admitted
having sexual offences on other occasions but cannot remember how many times
altogether. Submission on your behalf
on this ground fails.
The
Prosecutor further submits that the fact that you had pleaded guilty to the two
charges laid against you and admitted to having
committed the offences to the
Police during the interview, could be seen as a mitigating factor in your
favour, however, a custodial
sentence should be the appropriate punishment to be
applied in your case considering the circumstances of your case.
The
prosecutor cited the case of PP –v-
Gideon Mael, [1998] VUSC 92; Criminal Case No. 18 of 1998 as authority
for this proposition. The accused in that case pleaded guilty to having
committed incest
with his daughter when she was 13 years old. The circumstances
of that case is not the same as in the present case. For example the
victim in
that case was only a child of 13 years and was in grade 6 in school. The victim
in this case at the time of the sexual
offences was 21 years of age, an adult.
However, an aspect which is common in both cases is that it happened within the
prohibited
insainguity. It happened within the family sphere where family
members are most vulnerable. Why, because family members are there
to support
each other but not to be abused in circumstances as in the case cited and this
case. It is the place where such abuse
is not expected to happen. I agree with
the position taken at page 2 of the judgment in
Mael’s case which reads:-
“The Court must impose severe penalty in this type of cases to reflect the seriousness of the offence itself and the circumstances as to how the offence was committed and further to try and prevent such unwanted sex behaviour and that I consider a custodial sentence would be the only appropriate penalty as punishment and also a deterrence to others.”
The Prosecution
submitted further that age difference between yourself and the victim also
contributed to your actions. You are 30
years old and the victim is 21 years
old. That in such situation the victim is vulnerable and you took advantage of
the situation.
Counsel on your behalf urged this Court not to place any
weight on the age difference between yourself and the victim. When persons
become adults that changes, the weight shifts. That the person is not blameless.
That the person is not as vulnerable as of when
he or she is a child.
The
victim is your sister. She came from a village on Maewo to live with you here in
Saama village, on Efate. She may have been naïve
and has not had the
exposure of the trappings of a more robust life style on Efate. You are the man
she looked up to for support
and well being while in a strange place. You are
her brother and as such she had complete trust in you for her well being while
living
in your home with your family. She had moved away from an environment
where she is familiar and comfortable with to live in one which
you are familiar
and comfortable with and hence relied on you for her existence and well being.
You took advantage of the situation.
By your actions you placed her in a
situation in which she became confused and frightened and had to go along with
your demands for
sexual gratification.
Counsel on your behalf submits
that customary settlements has taken place. One in November or December 2003 and
a recent one in 14th January 2004.
The earlier one was between yourself and the victim. The following were given to
your father on behalf of the victim:-
• 1 head of kava valued at VT5,000
• 1 shirt valued at VT500
• 1 trousers valued at VT1,000
On
14th January 2004 the following
were given to your father:-
• 1 pig valued at VT30,000
• 1 head of kava valued at VT10,000
• 24 mats valued at VT12,000
• One 25Kg bag rice VT3,060
• Cash VT16,000
• 4 yards of calico VT500
• transport (Maewo – Vila) VT6,800
------------
VT78,360
These you have paid to your father. The total value of the
goods paid in the custom ceremonies come to VT84,860. What is the effect
of the
custom ceremonies. Section 119 of the Criminal Procedure Code says that:-
“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 on 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.”
Counsel on your behalf
urges this Court to take cognizance of that section. Counsel submits that it is
wrong to simply say that such
custom ceremonies
“simply reduces ill feelings between
the parties”. Counsel argues that to do so would not take into
proper account values of the community. Such customary ceremonies set in
parallel what the Court do, and that is restitution, compensation,
rehabilitation and education of the community. It sends a clear
message that
wrong doers will not go unpunished by the community.
Custom ceremonies
performed during situations such as in this case, are an important and valuable
aspect of the Vanuatu culture. It
goes to demonstrate, punishment, sorry,
restitution, compensation and peace. Section 119 recognizes the importance of
such customary
settlements.
It says the
“Court shall ... take account of any
compensation or reparation made or due by the offender under custom
...” This the Court must do to arrive at a proper level of penalty
to be imposed. This is aimed at the quantum of penalty to be
imposed. If the
Court had considered a specific term of years or fine as the appropriate
sentence to be imposed after taking into
account certain factors, but not
compensation or reparation made under custom, then that term or fine could be
affected when taking
into account such compensation or reparation. However, it
will not in my view, affect the nature of the offence committed. The term
that
could be imposed and the nature of the offence are two distinct matters. It
would seem to me that section 119 of the Criminal Procedure Code Act recognizes
that distinction by referring only to the quantum of penalty that could be
affected when taking due account of any
compensation or reparation made or due
under custom. I could not agree more with the Court of Appeal in
Public Prosecutor –v- Kevin Gideon
[2002] VUCA 7 when, at page 8, of the Judgment it said:-
“Section 119 is relevant to an assessment of the “quantum of sentence” and not the nature of sentence. It can influence the length of a sentence of imprisonment or the amount of a fine, but not its fundamental nature.”
Counsel on your behalf
informed this Court that further customary settlements may occur between
yourself and other family members.
Counsel agreed that the main ceremonies are
the ones that took place between yourself and the victim and yourself and your
father.
The Court had given sufficient time for custom ceremonies to be
performed and in my view cannot delay any further but to give
sentence.
Counsel on your behalf have further urged me to look at other
forms of punishment to impose on you and not imprisonment. Incest is
a very
serious offence and a custodial sentence would be the appropriate punishment in
the present circumstances.
Clearly there are aggravating features in your
case. These include use of force or threat to induce sexual intercourse, and the
fact
that the act of incest occurred on a number of occasions not just once. The
victim was clearly vulnerable due to your threats, and
beating when she left the
home.
There are clearly mitigating factors to take into account and
balance with the aggravating ones. I take into account that you pleaded
guilty,
that you have no prior conviction, you are truly sorry for what happened and
that you have made settlements in line with
custom.
What you have
committed is a serious sexual offence. It strikes at the heart of the family and
the victim can be devastated for life.
The victim, your sister, is now pregnant,
with your baby and she will carry the burden of guilt and shame with her most
likely through
out her life.
It is my view that this is an offence which,
in your circumstances, the appropriate penalty must be imprisonment. It is not
appropriate
to suspend any term of imprisonment that will be imposed.
On
Count 1 you are today sentenced to 2 ½ years of imprisonment.
I now
turn to Count 2. You have pleaded guilty to the charge of intentional assault
that took place over a period of time commencing
in July 2002. In the interview
with the police you admitted that “hemi
true taem ... hemi stap ko wokbaot olbaot ... mi wipim hem wetem black electric
rope.”
Why you
“stap wipim hem wetem black electric
rope”, when she goes
“wokbaot olbaot” is not
clear. From your evidence and that of the victim it seems that these
“wokabaot” did not meet
with your approval, hence the beating.
The prosecution have submitted
that the beatings you inflicted on the victim were part of your approach to
force her to have sexual
intercourse with her. There is nothing in the evidence
to suggest this and I therefore disregard it.
No mitigating factor at all
was submitted on your behalf on the charge of intentional assault causing harm
of a temporary nature to
the body of the victim. In your statement to the police
you offer no reason at all for beating the victim when she went
“wokabaot
olbaot”.
On this Count you are sentenced to 4 months
imprisonment but suspended for 3 years on the condition that you commit no
further offence
against any Act, Order, Regulation or Rule within that
period.
You have the right to appeal these sentences within 14
days.
MADE at Port Vila, this
28th
day of January 2004.
H.
BULU
Judge.
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