Police v Afato [1999] WSSC 8 (20 July 1999)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

GALU LESA AFATO
of Vaoala and Vaovai, Falealili
Defendant

Counsel: Misses. M. Tuatagaloa & L. Tuala for the Informant
Mr H. Schuster for the Defence

Hearing Date: 7, 8, 9, 10 & 11 June 1999
Sentencing Date: 20 July 1999

SENTENCING REMARKS OF WILSON J.

Galu Lesa Afato, you are 38 years of age. You have a wife and 4 children. You have been found guilty, by the verdict of assessors, of the crime of rape.

You now stand convicted of that serious crime.

On 21^st March 1999 you had sexual intercourse with a young woman, Faatasala Fonoti Filiga, without her consent. You thereby raped her.

This was a serious crime of rape of its kind. You drove the victim to a secluded place and you then used physical force to subdue her. In the course of satisfying your own sexual desires you caused bruises and marks on the victim’s chest (or "lovebites", as they were called during the trial) and you damaged her dress (the buttons came off) and you tore her shorts. Those are all aggravating circumstances.

On the day in question, you stopped and picked up the victim in your vehicle when she was waiting (with others) for transport into Apia. You gave her a lift only; you told a false story to explain why you could not also give a lift to some other people. When she was becoming anxious as you drove along, fast, heading towards the quiet spot where your crime was committed, (on a plantation road, inland, near Saleilua), you told some further false stories to reassure her. When you stopped your vehicle and started to make sexual advances to her, she was obviously really frightened and she jumped out of the car and ran in a seaward direction, the direction from which the vehicle had come. She did not make her escape, because you chased her, caught up with her and dragged her back by her collar and her hair. A struggle occurred. You punched the victim and you were pulling her hair. In the cause of the struggle you wrapped a T shirt around her head and mouth to stop her screaming.

As the law requires me to do, I treat as surrounding circumstances (but not as reasons to punish you more severely) the fact that you had non-consensual sexual intercourse, not just once, but 4 times. It would have been otherwise had you been charged with and found guilty of 4 counts of rape.

After the non-consensual and violent sexual abuse had come to an end, you attempted (unsuccessfully, as it turned out) to induce the victim not to tell anybody anything to implicate you.

You promised to take her to New Zealand if she said nothing. You also made a number of threats to her, which she obviously took seriously. You said in a number of different ways that if she "ever told anybody about this", you would then "kill" her. You even told her what to say if she was spoken to about this incident. You suggested that she tell a false story about the place where it had happened and that "two men" had raped her.

That your victim was terrified by what you did (and said) was confirmed by the victim’s subsequent conduct when she got home. Initially she told a false story to Peka (her relative), to the police and to a doctor. The reason was that you had been threatening her.

The fact that, in addition to using violence towards the victim, you threatened her and put her in fear for her life are aggravating circumstances. They make me think that this was a very serious wrong that you did.

There were, I find, few mitigating circumstances of the crime itself. It goes to your credit that you did not leave her out at the secluded spot and you drove her back to town.

I note that in no way did your victim encourage you or lead you on. Although she had a degree of self-confidence as a witness giving evidence from the witness box, I have no doubt that she was terrified by the experience of being raped, and still carries with her psychological injuries additional to the physical injuries from which she seems, fortunately, to have recovered fairly quickly.

I must impose a deterrent sentence here in order to deter you from ever committing a serious crime like this again in the future and to deter other men who might be thinking of raping a woman. Women ought to be able to expect from the law some protection. The sentence I will impose will go some way, I trust, towards providing that protection.

I do not overlook the matter of rehabilitation, but, in this case, deterrence must come first (deterrence is the paramount consideration) and rehabilitation must come afterwards.

I have read the pre-sentence report prepared by the Probation Service, and the references attached to that report. I have listened to the submissions of your lawyer, who spoke on your behalf. You have had a very good work record. I note that you are the sole breadwinner for your family.

I note that you have never committed a serious crime like this before. In fact, you have never committed any crime before. You are entitled to some leniency (some mercy) because you await the sentence of this Court as a first offender and as a man of previous good character.

I cannot give you the credit (in the order of 20% off your sentence - i.e. 1 year less than I will be imposing) because of a plea of guilty and because of the saving of the costs of a trial and because of saving the victim of your crime from having to give evidence and because of any remorse you might have shown. You did say to the Probation Officer that you are "remorseful for (your) actions". Your lawyer has made a similar statement. I am unable to accept that you are either contrite (in spirit) or remorseful for the wrong that you did to the victim; you are only sorry for yourself at this time and you are sorry for the worry and hurt that you have caused your wife, your children and your parents.

There are some crimes which are so serious (and which cause such worry amongst the people) that a relatively long prison sentence must be imposed, even when the offender is a first offender and even when imprisonment will cause hardship to the prisoner’s family (and to his extended family) and even when an ifoga has been given and accepted. This is such a crime.

The sentence of the Court is that you be imprisoned for 5 years.

JUSTICE WILSON