Police v Puni [2003] WSSC 15 (16 June 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

FALETAPU PUNI aka AIFALA PUNI,
male of Sataoa Safata
Defendant

Counsel: Ms M. Betham & Ms L. Mulitalo for prosecution

Mr FP Meredith for the defendant

Hearing: 20, 21, 22 and 23 May 2003.
Verdict: 23 May 2003
Ruling: 28 May 2003
Sentencing: 16 June 2003

SUMMING UP OF JUSTICE VAAI

Ladies and gentlemen assessors you will recall that there originally are nine information laid against the accused.

The counsel for the prosecution has probably put before you that she will address you and she did address on 7 information only that is because for reasons which I have made known to the counsels for the prosecution and for the defence. Now information 472 and 476 need not be considered by your during your deliberations.

Now ladies and gentlemen assessors there are 3 important matters that I wish to bring to your attention. The first relay to my function as a judge and your function as assessors in this trial. It is my duty as to direct you as to the law. That is applicable in this case and I ask you to accept completely what I tell you to be the law for that is my function. But the decision on what are the facts of this case as assessors is for you and for you alone for that is your function as assessors. If therefore during the course of summing up, so I indicate or appear to indicate to you any view of any question of facts which does not accord with your own views, then you must disregard my views because the decision on what are the facts of this case are for you and you alone.

The second matter is the one that I already charge you on during the trial, it is that you must come to your verdict solely on the evidence that you hear in this court room. If anyone of you has heard or read anything about this case before your position as assessor then you must put that out of your mind. You must consider all the evidence and in weighing it, you will bear in mind the submissions made by counsels and you must reach your verdict in accordance with the directions I give you as to the law. I urge you all to exchange your opinions and try to reach a final conclusion which represents the verdict of you all.

As assessors you are able to assess and sum up witnesses and you are able to decide whether you accept or reject what the witnesses say, as you are the sole judges of the facts. The question of whether you accept or reject the evidence or any part of the evidence of any particular witness is entirely yours. You have the absolute right to accept or reject any evidence or any part of the evidence of any witness. That of course does not mean that you must accept or reject all that a person says without qualification. You may find that a person who impresses you as a witness say something that you do not accept. You may also find that a person who does not impress you as a witness say something which you do accept. You can accept some and reject some if that is where you think the truth lies. You may draw inferences from the facts that you have been established but those inferences must be logical and proper deductions based on established facts and not me as speculations. In considering all these matters you will apply your collective commonsense and experience as human nature as men and women of standing in our community. I ask you to put aside any feelings of prejudice or sympathy one way or the other which you may have towards the accused, the victim or any of the witnesses or any other person involved in this case. You will apply the law to the fact in this case and you will decide the case and reach your verdicts on the evidence and on the evidence alone.

The third matter I wish to explain to you is the onus of proof. I wish to make it quite clear to you that there is no onus on that accused sitting in that box to prove his innocence. The onus is on the prosecution who brought the charges. The law is that the prosecution must prove each element of the charge beyond reasonable doubt before you can bring in a verdict of guilty to the charge. Reasonable doubt means a proper doubt founded upon a proper consideration. It does not mean a vague or fanciful doubt. In other words it is not enough for the prosecution to establish a suspicion of guilt or to show that the accused is properly guilty. The evidence must satisfy you beyond reasonable doubt that the accused before you bring in a verdict of guilty. If after consideration of the evidence you are satisfied and that the prosecution has proved each element of the charges beyond reasonable doubt then it is your duty in accordance with your oath to find the accused guilty of the charge. If on the other hand you are not satisfied that the prosecution has proved each of the elements of the charge beyond reasonable doubt it is equally your duty to find the accused not guilty of the charge. I have said earlier that there is no onus on the accused to prove his innocence. It is the rule of the law that the accused person is presumed to be innocent until his guilt has been proven beyond reasonable doubt. That, ladies and gentlemen assessors it is an important presumption which you should bear in mind it is at the heart of our criminal justice system.

An accused person has a right under the law to do one of the two things at this trial. Firstly he can remain completely silent or secondly he can give evidence. This accused has decided to remain silent and you are not to draw any unfavourable inferences against the accused through the exercise of his right to remain silent. Now those are the three matters that I wish to put before you. Now the accused has been charged with one charge of rape and two alternative charges. He has also been charged of four charges under section 50(1) of the Criminal Crimes Ordinance.

I will be dealing with each information and to make your work a lot more easier, I will be referring to the information numbers and these information will be available to you during your deliberations. Before dealing with each of the information I must say this is properly the case where your commonsense will play a vital part in your deliberations and I trust that our visit to the scene of the incident yesterday will help you in your deliberations.

JUSTICE VAAI

______

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

FALETAPU PUNI aka AIFALA PUNI, male of Sataoa Safata
Defendant

Counsel: Ms M. Betham & Ms L. Mulitalo for prosecution

Mr FP Meredith for the defendant

Hearing: 20, 21, 22 and 23 May 2003.
Verdict: 23 May 2003
Ruling: 28 May 2003
Sentencing: 16 June 2003

SENTENCING REMARKS OF JUSTICE VAAI

The victim at the time of this offence was committed was 12 years old attending Sataoa Primary School. The accused is 25 years of age and at the time of the offence was the de-facto husband of the mother of the victim. They cohabited in 1998 and from this union they have a 4-year-old son. Other than the victim the mother has two other daughters from another de-facto relationship prior to living together with the accused in 1998. All the four children were living with their mother and the accused at Sataoa at the time this offence was committed.

Rape is a very serious offence especially so when the victim is very young like the 12 years old in this case. And even more so when the victim was living with the accused as a member of his household. Now this offence was committed in the early hours of Sunday morning in April 2002 while the victim was asleep by herself and the mother and the other children had gone to the village shop. You were also supposedly asleep when your wife left for the shop. But the victim woke up when you were undressing her and despite her attempts to resist being undressed, you managed to undress and proceed to rape her. She continued to resist while you were on top of her and you responded by covering her face with the sheet and pillow. She fainted. She also bled. She did not tell her mother what took place through fear of what you said to her. Your offending was exposed when the victim became sick and upon admission she was examined and the resulting test revealed she was nine weeks pregnant.

Obviously the pregnancy was not due to the non-consensual intercourse in April for which you are now appearing for sentence but due to others which followed. You were also charged with a number of offences relating to having sexual intercourse with the same victim on a number of occasions over a period of time subsequent to the first non-consensual intercourse. Although those other charges of unlawful sexual intercourses were not proven I still consider them to be relevant for sentencing purpose for the reasons that although those charges that were dismissed on the technical point of law, it was nonetheless accepted by the assessors that there were sexual intercourses subsequent to the rape. Although they were consensual they were nonetheless unlawful for the reasons that the victim was under 16 years.

In considering the sentence I must emphasise once again that sexual violation and sexual abuses against young females continue to rise and this court is duty bound to respond to protect the interest of society and of young persons.

Counsel for the prosecution has correctly referred the court to the Convention on the Rights of the Child. That convention requires the protection of the Child from Sexual abuse. That convention was ratified in 1994 so that we should not merely pay lip service to it but ensure its objectives and goals are achieved.

In my view and in the absence of sentencing guide lines in this court for this kind of offence, I consider that for the offence of rape committed by an adult person, a figure of six years imprisonment should be taken as a starting point before taking into consideration the mitigating and the aggravating factors. The prosecution has referred to a number of aggravating factors.

As a consequence of your not guilty plea, the victim was obliged to give evidence. And for one and a half days she was in the witness box. It was a distressing sight to see a young pregnant 13 year old in the witness box. She turned 13 in November of last year. It must have been as the prosecution said even more degrading for her to sit there and recollect the events of that early Sunday morning. The degree of emotional and psychological trauma she suffered was aggravated by suggestions from your counsel in cross-examining the victim that she, at the age of 12 was having sexual relations with another boy of her village. That information could only have come from you. This young girl has been denied the right to grow to maturity unmolested and undefiled by the lust of men like you.

I have not had the benefit of having before me a victim impact report on this young girl and I sincerely hope that this kind of report will be made available to this court in a not too distant future. I cannot say for certain what the impact of your offending will be on the victim in the years to come. I can, however, I think, say with certainty that she has suffered at a very early age indignity and degradation. She has been denied the right to continue with her education. She is now out of school. Her rights to grow up as a child in a family environment of love and happiness has been snuffed.

Since April 2002 when you raped the victim you continued to have sexual intercourse with her. Although these were consensual intercourses you nonetheless continued to have sex with her until she became pregnant. You were also, as the prosecution has correctly stated, the father figure to this victim. You took advantage of your position as the father to manoeuvre the achievement of your desires. You waited until the mother and her other children left the house before you did what you did on that morning. You abused the trust placed on you by the mother as her husband and by the victim as a father like figure.

Now in mitigation I am afraid to say I have found hardly anything which can be termed mitigating. Other than the factor that the probation report says you are a first offender, I see no other mitigating factor in your favour. The prosecution says that any suggestions of remorseful should be treated with suspect but I must say I do not accept that you are remorseful because had not this young girl became pregnant, your warped conduct would have continued unexposed. Counsel has referred to your outstanding sporting endeavours on the rugby field. All I can say is that your sporting endeavours on the rugby field can only be matched by your unlawful sexual endeavours off the field.

Now the sentence that I will impose should be in my view be sufficient to condemn your conduct, to punish you and to serve as a deterrent and other like-minded men. You are sentenced to seven (7) years imprisonment.

JUSTICE VAAI