Key v Police [2013] WSCA 3 (28 June 2013)

COURT OF APPEAL OF SAMOA

Key v Police [2013] WSCA 03

Case name: Key v Police

Citation: [2013] WSCA 03

Decision date: 28 June 2013

Parties:
PETI KEY of Tafaigata Prison (Appellant) v POLICE (Respondent)

Hearing date(s): 25 June 2013

File number(s): C.A. 07/13

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s):
Fisher J
Hammond J
Hansen J

On appeal from:

Order:

Representation:
T S Toailoa for Appellant
P Chang and R Titi for Respondent

Catchwords:

Words and phrases:

Legislation cited:
Prisons Parole Board Act 1977

Cases cited:
R v AM [2010] NZCA 114, [2010] 2 NZLR 750
R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA)
R v Hessell [2009] NZCA 450
Police v Faulkner [2007] WSSC 80
Attorney General v Matalavea [2007] WSCA 8
Police v Luamanuvae [2012] WSSC 4
Police v Sione [2011] WSSC 128
Police v Filipo [2011] WSSC 127
Police v Moatoga [2012] WSSC 61
Police v Z (Unreported, 13 July 2005)
Police v Skippy Afioga (18 June 2012)
Police v Mika [2013] WSSC 20

Summary of decision:

1. The appeal against conviction is dismissed.
2. The appeal against sentence is allowed. The sentence of 14 years imprisonment is quashed. We impose a sentence of 11 years imprisonment.

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

C.A. 07/13

BETWEEN

PETI KEY of Tafaigata Prison

Appellant

AND:

POLICE

Respondent

Coram:
Honourable Justice Fisher
Honourable Justice Hammond
Honourable Justice Hansen

Counsel: T S Toailoa for Appellant
P Chang and R Titi for Respondent

Hearing: 25 June 2013

Judgment: 28 June 2013

JUDGMENT OF THE COURT

100. The appeal against conviction is dismissed.

4. The appeal against sentence is allowed. The sentence of 14 years imprisonment is quashed. We impose a sentence of 11 years imprisonment.

Introduction

1. On 2 April 2013 the appellant stood trial before Malosi J and assessors. He faced two charges of rape, one of attempted rape and one of assaulting a constable. He was convicted on one charge of rape, the attempted rape and resisting and assaulting a constable. On 22 April 2013 Malosi J imposed a sentence of 14 years on the charge of rape, five years on the charge of attempted rape, and six months on the charges of resisting and assaulting police officers, those latter sentences being concurrent with the sentence on the rape charge.
2. He appeals his conviction and sentence on the charge of rape only.

The conviction appeal

3. The sole ground advanced is one of counsel incompetence. As is normal in such cases, the appellant waived privilege and filed an affidavit. In his affidavit he stated that when briefed by Mr Wulf in relation to his defence strategy, he told Mr Wulf that what the complainants had said in their statements to the police was not true and that he must be given the opportunity to tell his side of the story. He said that Mr Wulf’s response was to state that if the appellant heard any false statements being made by the complainants in the course of the trial he should make notes and he could speak or testify about those matters later. He further stated that in the course of the trial he repeatedly raised his hand when he disagreed with matters but was ignored.
4. Mr Wulf denied these allegations. He said he specifically asked the appellant whether he wanted to give oral testimony at the hearing and the response was that the appellant did not. He exhibited the notes he took at this meeting. He also told the appellant that if he heard matters in the course of the evidence that he disagreed with he should make a note and hand it to counsel who would cross-examine accordingly.
5. Mr Wulf also gave evidence that immediately prior to the commencement of trial, the appellant raised the point that he wished to give evidence but only in relation to the allegations made by the complainant in the rape charge of which he was acquitted. Mr Wulf said he advised the appellant that if he elected to give oral testimony at trial, he could then be cross-examined by the prosecution on all charges and all allegations. Mr Wulf further stated that as a consequence of this advice, the appellant re-stated that he would not give evidence.
6. Mr Wulf accepted the appellant raised his hand at trial, but only twice. The first occasion during the prosecution’s closing address and the second at the conclusion of sentencing. On the first occasion he complained to Mr Wulf that what the prosecutor was saying was untrue. Mr Wulf responded that he would put the appellant’s version to the Court in his closing. As to the second Mr Wulf responded that as sentencing had concluded the appellant could not make a statement.
7. Mr Wulf was adamant that the instruction of the appellant that he did not elect to give evidence was maintained throughout the trial.
8. Both the appellant and Mr Wulf were cross-examined before us. The appellant remained adamant that he gave clear instructions that he wished to give evidence. He also denied on oath that he had ever had sexual intercourse with the complainant in the rape charge for which he was convicted. This may be compared with his stance at trial where his defence was that he had sex with the complainant but that it was consensual. That defence is confirmed by Mr Wulf’s notes, a point on which he was not cross-examined. Indeed, the matter goes further, because at the callover on the morning of 24 June, this Court put to counsel for the appellant that the appellant’s defence at trial was that sex occurred but that it was consensual. Mr Toailoa confirmed to us this was the case.
9. In answer to questions from the bench Mr Wulf confirmed the appellant had a notebook and a pen and that he wrote in the notebook in both Samoan and English. Mr Wulf said the writing seemed to be about the appellant’s emotional state and his observations about the trial process. He confirmed the appellant never handed him a note in the course of the trial. He also stated he discussed matters with accused during the adjournments and that the appellant never complained or raised issues with what was occurring.
10. The matter raises a straightforward credibility issue. We do not accept the evidence of the appellant. He completely changed his stance as to whether or not sex had occurred with the complainant. He gave no explanation for this significant change. His answers to other questions were less than satisfactory. We simply do not accept that the appellant instructed Mr Wulf that he wished to give evidence at any stage before or during his trial. We suspect Mr Wulf’s comment in the witness box that if the accused had given evidence he would now be complaining that this resulted from bad advice is correct. We also accept, as accurate, Mr Wulf’s evidence as to the appellant raising his hand.
11. We would add that it was clearly Mr Wulf’s view that given the nature of the charges and the evidence against the appellant he did not personally think the appellant should give evidence. We see good reasons for such a view in the circumstances of this case.
12. However, this case highlights the need for counsel to be ever-vigilant. Counsel in criminal trials who receive instructions on critical issues relating to the trial and trial tactics should always have an accused person sign a note or an agreement to this effect. Had Mr Wulf required the appellant to sign a brief note stating that he elected not to give evidence, it is unlikely the conviction appeal would have reached this Court. We encourage all criminal counsel in Samoa, that do not already adopt such a practice, to do so forthwith.
13. Having accepted that Mr Wulf followed his instructions not to call the appellant, it follows that the appeal against conviction must be dismissed.

Sentence appeal

14. The sentence appeal raises a more substantial point as to whether or not it is appropriate at this juncture for this Court to issue a guideline sentencing decision for the offence of rape in Samoa. We advised counsel of our intention to consider this, and we are indebted to them for their extensive and helpful submissions. We indicated that we were minded generally to follow the guidelines set out by the New Zealand Court of Appeal in R v AM^[1]
15. The matter has been extensively considered in New Zealand in that case. At [14], the Court stated:
    

Current sentencing practice is based around a methodology which was first explicitly and authoritatively explained in Taueki.^[2] Under Taueki, the sentencing Judge’s first step is to identify a starting point sentence which appropriately reflects the intrinsic seriousness of the offending. This ‘starting point’ sentence is, at the next step, adjusted up or down to reflect circumstances which are personal to the offender (including a plea of guilty if there has been one). More recently, there has been something of a development of the Taueki methodology in cases where there have been guilty pleas or assistance to the authorities. It is now seen as best practice to arrive at a provisional sentence which reflects all factors other than the guilty plea and/or assistance to the authorities, and then, in a third step, discount that provisional sentence to allow for those factors.

All of this is explained in Hessell.^[3] For ease of reference, rather than strict accuracy, we will treat this as encompassed by the phrase ‘Taueki methodology’. This methodology has been developed in respect of sentences of imprisonment and is only of assistance in determining how long such sentences should be (including notional sentences where home detention is an issue).

5. The Taueki methodology has been applied in Samoa by the Chief Justice in Police v Faulkner,^[4] and by the Court of Appeal in Attorney-General v Matalavea^[5] and a number of other cases. The Taueki methodology is already well established in this jurisdiction.
17. In R v AM, the New Zealand Court of Appeal applied the Taueki methodology in setting bands for sentencing for offences of sexual violation and unlawful sexual connection. We will turn to the specific bands and the differences between the New Zealand jurisdiction and Samoa in due course.
7. We note that R v AM has been considered and applied in Samoa in a number of cases (see for example the sentence of the Chief Justice in Police v Luamanuvae,^[6] and the sentences of Slicer J in Police v Sione and Police v Filipo).^[7] However, it was rejected by Nelson J in Police v Moatoga^[8].

Submissions

19. Both counsel were in agreement that a guideline decision for the offence of rape in Samoa was appropriate. Ms Chang, for the Attorney-General, submitted that it would be appropriate to apply the R v AM bands in Samoa with suitable upward modification to take into account the different maximum sentence for rape in Samoa. She also submitted that because the bands in New Zealand covering sexual violation encompassed offending other than rape, there needed to be an upward adjustment to reflect this fact. She further submitted that it would be necessary for this Court to clearly state that the bands in R v AM, and any bands set by us, determine starting points in the Taueki sense.
20. Mr Toailoa, on behalf of the appellant, also submitted a bands approach was appropriate, but took a completely different approach from R v AM and Ms Chang’s submissions. He accepted that there needed to be recognition of the higher maximum sentence in Samoa, and an uplift was appropriate for that. He submitted that there should be two categories of offending for rape which took into account and recognised the sanctity of family in Samoa and the devastating effect of intra-family offending.
21. Accordingly, he recommended a category A, which he described as a ‘stranger’ category, with five bands. The bands were of increasing seriousness, with starting points of three to six years in band 1, through to 21 years to life for band 5. In his category B, which he described as the ‘family’ category, there were only two bands. This was where there was some family connection between a victim and an accused. Band 1, which was a single count of opportunistic rape with no violence or threat of violence, had a recommended starting point range of between 16 and 20 years. Band 2 recommended a starting point of 21 years to life.
    

Discussion

22. We are satisfied that it is appropriate to issue a guideline decision relating to rape sentences and, subject to suitable modification, it is appropriate to apply R v AM in Samoa as has already occurred in a number of Supreme Court decisions. In doing so, we do not intend to rehearse and repeat the reasoning in R v AM at length, but we adopt it and concur in it. This highlights the need to read this judgment alongside R v AM. The reasoning in that case and the decisions reached relating to rape sentences, except for the actual term of imprisonment, are incorporated into, and form part of, this decision.
23. In addition to the bands adopted from R v AM, we place particular emphasis on the Culpability assessment factors set out in paras [34] to [64]. We consider those factors are equally applicable in Samoa. However, it is essential that they be read and applied in the light of the general comments in [32] and [35], in particular [35].....“However, it is trite but important to emphasise that what is required is an evaluation of all the circumstances. Listing relevant factors and setting out bands in the way we have done does not remove the need for judgement. A mechanistic approach is not appropriate.”
24. It is, however, necessary to consider appropriate modifications to make the bands we propose jurisdiction-specific.
25. We note that we are dealing with the offence of rape pursuant to s 47 of the Crimes Ordinance 1961. It was under this provision that the appellant was tried. Since that date a new Act has come into force, but s 47 dealing with rape remains in the same form. However, there is a further section dealing with sexual violation covering the matters in addition to rape set out by the Court of Appeal in R v AM at [90]. But there is a significant difference from New Zealand in that rape continues to attract a maximum sentence of life imprisonment, whereas sexual violation has a maximum sentence of 14 years. This decision will be applicable to rape under the new Act, but it would be inappropriate for us to comment further on the newly introduced offence of sexual violation. Nor do we need to comment on that portion of R v AM dealing with offences in New Zealand as unlawful sexual connection (the “USC Bands”).
26. Secondly, as counsel and we have noted, the maximum sentence for in New Zealand for rape, is 20 years. Both counsel were in agreement that some uplift to the bands set out in R v AM was appropriate to reflect the greater maximum sentence in Samoa. We agree, and this is reflected in the bands we set out in due course.
27. We do not accept the suggestion from Ms Chang that the ranges contained in the bands in New Zealand have been lowered because they include offences that would not be rape in Samoa. Rather, what the New Zealand law does is to equate penile penetration of the mouth or anus, or violation involving objects, with rape. We would not consider it appropriate to increase the bands because of this submission. While we understand the submission, it is based on a misunderstanding of the legislation dealing with sexual offending in New Zealand. (See R v AM at [67]).
28. Further, we do not accept Mr Toailoa’s submission that there should be bands for stranger and family rape. We accept, without hesitation, his submission as to the sanctity of the family within Samoa. It was submitted that this type of offending was prevalent in Samoa, but we have no evidence as to that prevalence. The sad reality is that such offending is all too commonplace in most jurisdiction, including New Zealand, and these factors are amply provided for within the bands in R v AM and the culpability assessment factors set out from [37] to [52] of R v AM mentioned at [24] above.
29. We also reject the submission that there should be a fifth band added for the most serious offending. We think the top of the most serious band is adequate to deal with the most serious case. We were advised by Ms Chang that in Police v Z ^[9] the Chief Justice imposed a life sentence for serial offending against daughters and granddaughters (who were also his daughters). This was apparently the only occasion when a sentence of life imprisonment was imposed for rape in Samoa. However, that sentence remains available under the bands which we will set out.
30. Accordingly, we propose to set out the bands contained in R v AM as appropriate for Samoa, with an uplift that reflects factors specific to the jurisdiction of Samoa. As with R v AM, we have allowed an overlap to create necessary flexibility. The bands we adopt are:
    
    • (a) Rape band one: 8 – 10 years

Appropriate where the offending is at the lower end and where there is an absence of aggravating features or their presence is very limited.

(b) Rape band two: 9 – 15 years

Where violence and premeditation are moderate.

(c) Rape band three: 14 – 20 years

Offending where there are aggravating features at a relatively serious level.

(d) Rape band four: 19 years to life

As well as the aggravating features in Band 3 it is likely to consist of multiple offending over considerable time. Repeat family offending would fall into this band.

31. We have not set out above the full R v AM definitions of the bands. Rather we have expressed this in a shorthand manner. But the bands should be read as subject to, and incorporating paras [93], [98], [105], [108] and [109] of that decision.
32. We cannot over-stress the need for sentencing Judges and counsel to read this decision in conjunction with a close reading of R v AM, particularly the discussion of culpability assessment factors at [29] to [62]; and the rape bands, at [65] to [108]. All the matters set out therein, apart from the actual period of years, will appropriately apply to the sentencing process in Samoa.
33. The band set out starting point, but accept there will be cases that are so unusual they will require a starting point outside the guideline (i.e. below the bottom of band 1). If a Judge departs from the guidelines, it will be an exceptional case, and clear reasons should be given for such departure.
34. We would also stress the statements of the Court in R v AM:
    

[79] In considering the culpability of offending in a particular case, we emphasise that what is required is an evaluative exercise of judgment. We see judges as having a reasonable degree of latitude in this exercise. Sentencing judges will have a range of information before them and, after trial, will have more information than can be gleaned from the record. In assessing the gravity of offending judges must, of course, do this in a fact-specific way focusing on the culpability of the offender and the effect on the victim and, as a corollary, they must not reason by stereotype or seek to turn responsibility for the offending back on the victim, in terms of “she asked for it” or other excuses based on rape myths.

...

[81] Because of the evaluative nature of the sentencing process, we have tried to maintain a degree of flexibility and as in Taueki, we have provided for some overlap in the margins of the bands

...

[84] The proposed bands set out ranges of starting points, not final sentences. In the usual way, that starting point will be adjusted up or down to reflect circumstances personal to the offender. It is at this stage that mitigating factors such as youth, mental disability, and earlier good character will be taken into account. It is important that judges do not diminish this aspect of sentencing. Sentences should reflect personal factors. The point of the guidelines is not to impose a straitjacket on sentencing judges – quite the reverse. As explained in Hessell, the reduction for a guilty plea should be made as the final step in the sentencing process after the otherwise appropriate sentence has been determined, i.e., after other mitigating factors have been taken into account.

35. We notice that in a number of the Samoan decisions that we have been referred to, the fact that the person convicted of rape is a first offender has been treated as a mitigating factor, warranting a decrease in sentence. The fact that the convicted person is a first offender is not a mitigating factor. At most, it is neutral. Previous convictions are aggravating factors. Previous good behaviours is, of course, a relevant mitigating factor.
36. We do not propose to set out examples within the various bands, as the Court of Appeal did in R v AM. Those examples should of course be read in conjunction with this decision. The cases cited as examples give a sufficient range of offences to allow sentencing Judges in this jurisdiction to appropriately determine the band, the starting point within it, and relevant aggravating and mitigating factors. The extensive rape sentencing jurisprudence in Samoa, some of which we have referred to, will also give helpful assistance.
37. However, absent exceptional circumstances, some sentences cited to us in argument would be higher under these guidelines due to a higher starting point and some maybe slightly lower.

Starting date for the application of the guideline

38. As with R v AM, the content of this guideline does not differ significantly from what many sentencing Judges have been applying in Samoa. However, the new guideline should be applied to all sentencing taking place after the handing down of this decision. To assist trial judges and counsel, a copy of this judgment should be emailed to all trial judges, the Attorney General, and the Law Society of Samoa today.

Parole

39. A number of decisions have highlighted an issue created by section 10 of the Prisons Parole Board Act 1977. That section reads:

Eligibility for parole consideration – (1)An offender is eligible for consideration by the Board for release on parole upon the expiry of the following periods from the date of his or her reception in a prison after sentencing:

(a) ten years in the case of an offender undergoing imprisonment for life, having been sentenced to death and the sentence having been commuted to life imprisonment;

(b) eight years in the case of any other offender undergoing imprisonment for life.

(c) one year or after the expiry of one-half of the term of the sentence, whatever period is longer, in the case of an offender undergoing a sentence of 1 year or more other than a sentence of life imprisonment.

40. The effect is that a person sentenced to life is eligible for parole sooner than a person serving a sentence in excess of 16 years. We noted earlier that in fact the maximum sentence for rape appears to have only been imposed once in Samoa.
41. Firstly, this issue arises whether or not sentencing bands apply. Secondly, we would trust the Parole Board to take it into account in considering an application for parole. The Board would undoubtedly consider the fact that a prisoner had received the maximum sentence. Thirdly, if this issue proves problematic in practice (and it is not limited to rape sentences), it is a matter for Parliament.

The case at hand

42. As already noted, the appellant was convicted of rape relating to the complainant A, attempape relating to coto complainant B, and resisting police and assaulting police. We set out the sentence earlier.
43. There is no appealppeal against the sentences imposed for the attempted rape, the resisting arrest and the assault. However, it would be inappropriate to consider the rape sentence in isolation from the other offending, given the need to consider the totality principle.
44. In her sentencing notes, the Judge stated that the victim was 16 at the time of the rapes. The whole of her body was sore from being held down and her vagina was sore and painful from the incident. She also had a bruised chest.
45. In setting a starting point on the charge of rape of 16 years, the Judge considered both sexual offences were premeditated; that the appellant preyed on young girls who were no match for him physically; that they were vulnerable because of their age; that victim A was particularly vulnerable because of her serious intoxication; and that the appellant used deception to lure the young woman into his van. The Judge went on to say there were no mitigating features.
46. It was submitted to us that the offences were not premeditated and were simply opportunistic. We do not agree. At [37] of R v AM, the Court of Appeal noted that the degree of planning and premeditation reflects criminality. We accept that in this case, there appears to have been no element of planning in the rape, although one could not say that about the attempted rape. But as the Court continued in that decision:

...offenders who show predatory sexual behaviour may be more likely to offend in an opportunistic manner. They should not be treated as lacking premeditation.

47. We consider that this applies to this offending. There are sinister similarities between the rape and the attempted rape. We accept also that his victim was young and there was vulnerability because of age and serious intoxication. No doubt the appellant used deception to lure complainant B into his van, enlisting complainant A in achieving this, but we do not consider that the same could be said in relation to complainant A. However, there was deception involved in getting rid of the young man who was attempting to assist complainant A in getting home.
48. We also consider that there was an element of abduction involved in that the appellant assured the young man Mr F, that he would take complainant A home. Rather than do that, he took her to a different place altogether, where he raped her. We are also satisfied from the evidence, and the Judge’s sentencing notes, that although the injuries suffered by complainant A were relatively minor, they do indicate, given her highly intoxicated state, quite forceful intercourse.
49. However, we consider the starting point taken was too high, even taking into account that there needed to be consideration of the rape and the attempted rape. Before the sentencing Judge, the prosecution relied on Police v Skippy Afioga^[10] where a starting point of 18 years was adopted on one count of rape, with a sentence of 15 years ultimately imposed. However, the facts of that case are far removed from the present. The victim was effectively held captive for two nights and raped and sexually molested during that period.
11. On the other hand, the decision in R v Mika,^[11] with facts analogous to this, does not help the appellant. Mr Toailoa relied on it heavily in his submissions, but in our view it is a sentence well out of line with the many referred to us by both counsel.
51. In all of the circumstances of this case, we are satisfied an appropriate starting point was one of nine years’ imprisonment, with an uplift of two years to reflect the aggravating features we have identified above. We see no mitigating features.
52. Accordingly, the sentence of 14 years for rape is quashed, and a sentence of 11 years’ imprisonment imposed in its place.
53. We have indicated that the guideline set out in this judgment will come into force from the date of its publication. However, as a useful cross-check, we will consider this sentence in the context of the bands we have set out. Band 2 is appropriate for offending where levels of violence and premeditation which are moderate. We consider this particular case falls in the bottom of band 2, and that an appropriate starting point under that band is nine years. The appropriate uplift for the aggravating features remains the same. By such a cross-check, we arrive at the same sentence.
    

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Honourable Justice Fisher

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Honourable Justice Hammond

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Honourable Justice Hansen

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¹ R v AM [2010] NZCA 114, [2010] 2 NZLR 750.

2. ^[2] R v Taueki [2005] 3 NZLR 372 (CA).
3. ^[3] R v Hessell [2009] NZCA 450.
4. ^[4]Police v Faulkner [2007] WSSC 80.
5. ^[5]Attorney-General v Matalavea [2007] WSCA 8 at [15].
6. ^[6] Police v Luamanuvae [2012] WSSC 4.
7. ^[7] Police v Sione [2011] WSSC 128; Police v Filipo [2011] WSSC 127.

^[8] Police v Moatoga [2012] WSSC 61.

^[9] Unreported, 13 July 2005, Sapolu CJ.

^[10] 18 June 2012, Slicer J

11. ^[11] [2013] WSSC 20.