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Public Prosecutor v Mahit [2004] VUSC 85; Criminal Case 010 of 2005 (8 March 2004)

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

Criminal Case No. 10 of 2005

PUBLIC PROSECUTOR

–v-

PETER WILLIE MAHIT

Coram: Justice Treston

Mr. Mirou for Public Prosecutor
Mr. Bartel for Defendant

Date of Hearing: 8th March 2004
Date of Sentence: 8th March 2004

NOTES OF ORAL SENTENCE

You appear today on 1 charge of rape to which you have pleaded guilty and as your lawyer has acknowledged that is a very serious charge because the law provides that the maximum potential sentence is life imprisonment. This happened on 8 November 2004 around the middle of the day in Erakor. The victim had planned to go to the beach to collect shells and she passed by where you were on a coconut tree. You called out to her and asked her where she was going. She said she was going to the beach. You provided her with a green coconut from the tree. She carried on her way but you waylaid her, grabbed her by the waist and punched her to the jaw. You told her you wanted to have sexual intercourse with her. She refused but you held her tightly and dragged her into the bushes despite her resistance. You blocked her mouth when she tried to cry out for help. She was still struggling but you overpowered her, removed her lower garments and then raped her. She was fortunately not physically injured.

The Prosecutor reminds me of the appropriate principles in relation to sentences for rape. He talks about the aggravating features and submits that a sentence between three and five years imprisonment is appropriate.

On your behalf I am reminded that you are the same age as the victim, 17 years. You and the victim were known to each other on a casual basis before this incident. It seems you may have heard that she was a person that might bestow favours upon you or others but as your lawyer says because of your inexperience and ineptitude you behaved in a way which has proved to be criminal and now you understand that to gain the favours you thought about you have to be invited and the other person must consent. Although your lawyer says that you told him that you did not use force or blows, clearly from the evidence you did, but it is submitted that any violence was at the lower end of the scale. By way of mitigation your lawyers reminds me of your plea of guilty and your cooperation with the police. I am told that you tried to put in place a custom settlement but that was vetoed by the victim and her family. I am asked to take very much into account your young age relatively and that the fact that because of that you more likely to be able to rehabilitated.

As the Prosecutor said the sentence for rape has been subject of comment in the Public Prosecutor v Ali August [2000] VUSC 73; Criminal Case 14 of 2000. The learned Chief Justice echoed some of what I already said but other parts of what he said bears repeating. He said this: -

"The offence of rape is always a serious crime. Other than in wholly exceptional circumstances, 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 by no means least, to protect women."

The learned Chief Justice went on to say that:-

"For rape committed by an adult without any aggravating or mitigating factors a figure of 5 years should be taken as a starting point in a contested case".

He said that previous good character is of only minor relevance and he outlined the aggravating features which should substantially increase the figure as the starting point. He said that a reduction of one-third ought to be given for a plea of guilty. Of course that one-third is not a mathematical figure but it is a general guideline.

Sentencing generally involves a balance of aggravating and mitigating factors. As I say the learned Chief Justice observed some aggravating features in the August case. The major aggravating feature in your case, is the use of actual violence, not only in punching the victim to subdue her no doubt, but also in your use of force to drag her off where you had your way with her. In addition you used force to prevent her crying out for help.

I accept that there was little premeditation in your offending except for the fact that you had been earlier been told that she may be a person who you could take advantage of, so you probably thought about what you possibly could do before the day in question.

By way of mitigation, I take into account your age of 17 years, your plea of guilty, the fact that you have no previous convictions and the remorse expressed somewhat by your plea of guilty. I take into account the fact that the least restrictive outcome should be imposed but there is nothing in your case that is so exceptional that an immediate custodial sentence should not be imposed. I must hold you accountable for the harm done not only to the victim but also to the community at large. I must promote in you a sense of responsibility and acknowledgement of that harm. I must denounce your conduct and deter other likeminded offenders from offending in the same way because, as the Prosecutor has said, rape appears to be all too common in the community these days.

I treat you effectively as an adult because at 17 years of age you are fast approaching that status and you have in fact committed a very adult offence in this instance. Of course I take into account the question of customary settlement that you endeavour to do that might have assisted you even more had it occurred under section 119 of the Criminal Procedure Code. It is no fault of yours that you cannot take more significant credit for that compensation or reparation under custom, but I must observe the reality of the circumstances here.

I take the starting point of 5 years, which in the present climate at some stage might need to be increased but not in your case. I say that the aggravating aspects that I have referred to ought to increase the starting point to 6 years imprisonment but I make an allowance for your plea of guilty and your attempt at custom settlement of one-third in total. I therefore sentence you to 4 years imprisonment. I take into account the time that you have been in custody and reduce your sentence to 3 years and 49 weeks.

You have the right to appeal against that sentence within 14 days.

Dated AT PORT VILA, this 17th day of May 2004

BY THE COURT

P. I. TRESTON
Judge