Public Prosecutor v Garae
SENTENCE
Introduction
1. Mr Franklyn Garae, today you appear for sentence having pleaded guilty to a charge of sexual intercourse without consent (rape). [1] The maximum penalty for rape is life imprisonment.
The facts
2. The offending took place in 2025 at the victim, NB’s home at Jubilee Farm. At the time you were aged 50 years. The victim is your niece. The summary of facts is silent as to the victim’s age.
3. On an occasion in 2025, you went to the victim’s home. You called out, then opened the door, went into the house and the victim’s bedroom. You had sexual intercourse with the victim in her bedroom. You inserted your penis into her vagina until you ejaculated onto your clothes. The victim did not say anything at the time. The offending came to light in 2026.
4. In June 2026, you telephoned the victim. She did not reply because of what had happened. The victim did however text you in reply and swore at you. So, you complained to her parents, who responded by smacking the victim. At that point, the victim told her parents she swore at you because you raped her in 2025.
5. You were spoken to by police and said it was a crazy thought to “do this”.
Sentencing purposes / principles
6. The sentence I impose must hold you accountable and must denounce and deter your conduct. The sentence should ensure you take responsibility for your actions and help you to rehabilitate. It must also be generally consistent.
Approach to sentence
7. Sentencing involves 2 separate steps; Jimmy Philip v Public Prosecutor [2020] VUCA 40, which applied Moses v R [2020] NZCA 296.
Starting point
8. The first step is to set a starting point to reflect the aggravating and mitigating features of the offending, and with reference to the maximum penalty for the offence.
9. The aggravating factors of the offending are:
a. You gained access to the victim’s home uninvited.
b. The offending took place in the victim’s home and bedroom where she was entitled to feel safe.
c. The offending involved a breach of trust. That is because NB is your niece.
d. There was a degree of planning, given you went to the victim’s home uninvited. I infer that was with the intention of having sexual intercourse with her.
e. The victim was exposed to the risk of sexually transmitted diseases as the sexual intercourse was unprotected.
g. Impact on the victim – There is no victim impact statement, but this can only have been a traumatic experience for the victim, as evidenced by her reaction when you made contact with her.
10. There are no mitigating features of the offending itself.
11. The prosecutor submits the starting point should be 6 years imprisonment, with reference to Public Prosecutor v Selwyn [2021] VUSC 87. Mr Garae submits that the starting point should be 4-5 years imprisonment, with reference to the cases he cited in his written submissions.
12. Because the offending is rape, Public Prosecutor v August [2000] VUSC 73 and Scott v Public Prosecutor [2002] VUCA 29 apply. Scott is the guideline case for rape. According to Scott, where a rape is committed without any aggravating or mitigating factors, the starting point is 5 years imprisonment. As detailed in Scott, rape is aggravated by various factors, including when the defendant has gained access to the victim’s home, which occurred here. That can warrant a starting point of 8 years imprisonment. You gained entry into the victim’s uninvited. None of the other Scott factors are relevant. What is required here is an assessment of culpability taking into account the relevant aggravating factors, and their significance.
13. I cannot accept Mr Garae’s submission that the starting point could be 4 years imprisonment. That is below the 5 year starting point set out in Scott, the guideline case. There would need to be something particular about the circumstances of the offending for a starting point under 5 years to be adopted.
14. Of the cases cited by counsel, Public Prosecutor v Selwyn provides the most assistance in setting an appropriate starting point. In Selwyn, the defendant entered the victim’s bedroom, took off her clothes and had sexual intercourse with her. The Court noted that the offence was aggravated by the fact it occurred in the victim’s home and involved invasion into her home where she should feel safe. The starting point adopted was 6 years imprisonment. I consider that the offending in the present case involves similar culpability to Selwyn.
15. I have not considered cases where the rape has taken place in public, as such cases are too factually distinct. A key aggravating factor in the present case is the uninvited entry into the victim’s home, a place where she was entitled to feel safe.
16. The starting point should reflect that one of the Scott aggravating factors is present to a moderate degree, being that you gained access to the victim’s home. You had not been invited. This means the starting point will be higher than 5 years. While I acknowledge other cases are at best an imprecise guide, I consider that with reference to Scott, the aggravating factors I have referred to and Selwyn, there should be a starting point of 6 imprisonment. The key aggravating factors are the breach of trust, and that you gained access to the victim’s home and you then raped her in a place where she should have felt safe.
Step two: guilty plea and personal factors
17. You pleaded guilty at the first reasonable opportunity. There are a number of benefits of the early guilty plea. It saved Court time and resources, but perhaps more significantly, demonstrates to the victim your willingness to accept responsibility for your actions. It also meant that she was spared the indignity of having to give evidence. The sentence is reduced by 30 % for this factor. [2] The sentence is reduced by 22 months.
18. You are aged 51 years, and a first offender. You were aged 50 years at the time of the rape. You are from Ambae and currently live in Luganville, Santo. You are married with 6 children, 4 of whom live at home. Your partner has diabetes and hypertension, so relies on you to take care of her and the children. Your mother has unverified health issues, and also is said to rely on you for care and support. You are a gardener. You are remorseful and have accepted responsibility for your actions, as evidenced by your willingness to take part in a custom reconciliation, which has not taken place, as the victim does not wish to take part. You are well regarded in your community. Given that you are a first offender and are remorseful, the sentence is reduced by 7 months (approximately 10 %).
19. Presentence detention must be taken into account. You were in custody between 20 July 2026 and 11 September 2026, a period of 54 days (nearly 2 months), which equates to an effective prison sentence of approximately 4 months. The sentence is reduced by 4 months for this factor.
End Sentence
20. The end sentence is 3 years 3 months imprisonment.
21. Under s 57 of the Penal Code, there is a discretion to suspend an imprisonment sentence in whole or in part. I must take into account the circumstances, the nature of the offending and your character.
22. In Public Prosecutor v Gideon [2002] VUCA 7, the Court of Appeal said that it will only be in the most extreme of cases that suspension could ever be contemplated in a case of sexual abuse. That was reaffirmed by the Court of Appeal in Tulili v Public Prosecutor [2024] VUCA 54 and Tartar v Public Prosecutor [2026] VUCA 19.
23. As the Court of Appeal has said, in assessing whether or not to exercise the suspension discretion, a balancing of factors against, and factors for, suspension is required. [3] This is serious offending, given the aggravating factors set out above. You gained entry to the victim’s home. You had not been invited there. You took advantage of her for your own sexual gratification. The offending involved a breach of trust, and the victim was entitled to feel safe in her own home. There was planning. It must have been a traumatic experience for her. These factors point away from suspension.
24. I accept you are a first offender are remorseful and accept responsibility. I acknowledge your family relies upon you because of your wife’s health issues. These factors point towards suspension of the sentence.
25. However, the circumstances, both in relation to the offending and you personally, are a long way from being exceptional or extreme so as to warrant suspension of the sentence in whole or in part. I acknowledge that your family relies heavily on you, but I do not consider that to be an exceptional circumstance or tipping the scales towards suspension of the sentence. Accountability, deterrence and denunciation are important sentencing purposes, given the nature of the offending. A stern response is needed. The sentence will not be suspended, in whole or in part. [4]
26. The sentence of 3 years 3 months imprisonment is to commence immediately. Section 50 of the Penal Code is not applicable to you.
27. You have 14 days to appeal against the sentence.
28. I make a permanent order suppressing the name and identifying details of the victim.
DATED at Luganville this 15th day of October 2026
BY THE COURT
………………………………………….
Justice M A MacKenzie
[1] Charge 2 in the Information filed on 8 October 2026.
[2] The rationale underpinning a reduction of guilty plea has been explained by this Court in cases such as Taviti v Public Prosecutor [2016] VUCA 41, Pipite v Public Prosecutor [2018] VUCA 53 and Tevi v Public Prosecutor [2024] VUCA 43.
[3] Public Prosecutor v Garae [2025] VUCA 37. See also Malau v Public Prosecutor [2021] VUCA 48.
[4] Because the end sentence is 3 years 3 months imprisonment, the sentence could not be suspended in part. Pursuant to s 58(2) of the Penal Code, the discretion to partially suspend a sentence is only available if the sentence is 3 years or less.