Police v Tauvala'au [2006] WSSC 54 (18 October 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA
BETWEEN
POLICE
Prosecution
AND
VAISĀ TAUNAOLA TAUVALA’AU
male of Foalalo, Neiafu and Falelima.
Accused
Counsel: A Lesā for prosecution
A Roma for accused
Sentence: 18 October 2006

SENTENCE

The charge

The accused is charged under s.47 of the Crimes Ordinance 1961 with the crime of rape which carries a maximum penalty of life imprisonment. To the charge, the accused pleaded guilty at the earliest opportunity.

The offending

According to the summary of facts which was prepared by the prosecution and translated into Samoan to the accused and confirmed by him, the accused and the victim are first cousins, their mothers being sisters. On a day in December 2003 at about 2:00pm at the village of Foalalo in Savaii, the victim and three of her cousins went to collect coconuts from an area behind her house. The victim and her cousins then separated from each other and continued to collect coconuts from different areas.

The accused who was nearby saw and followed the victim without the victim knowing about the presence of the accused. The accused then called out to the victim to stop. He was carrying a knife at that time. The victim stopped to see what her cousin the accused wanted. The accused came over and grabbed one of the victim’s hands and pushed her to the ground. She tried to call out to her cousins with whom she had come to collect coconuts but the accused placed his hand over her mouth. The accused then removed all the victim’s clothing, lay on top of her, inserted his penis inside her vagina, and despite her struggling and cries of pain continued to have sexual intercourse with her until he ejaculated over her thighs. The accused told the probation service, as it appears from the pre-sentence report, that while he was having sexual intercourse with the victim, blood was spilling all over her legs and he knew then that that was the first time the victim has had sex.

After he accused had ejaculated, he put on his clothes and instructed the victim to also put on her clothes. He also told the victim not to tell anyone about what had happened otherwise he would beat her.

The victim

The victim is a female from the village of Foalalo in Savaii. She was 15 years of age at the time of this offence in 2003. She was also attending school. She and the accused are first cousins as their mothers are sisters. In Samoan custom they are really brother and sister.

As there is no victim impact assessment report, the impact of the present offence on the victim is unknown.

The accused

The accused is a male from the same village of Foalalo. He was 37 years old at the time of this offence. When this incident occurred, he was working as a planter on his family’s land at Foalalo. Since this incident he is no longer living at Foalalo. He is now living at the village of Fagaloa in Upolu.

The accused is also a first offender. From the pre-sentence report, it appears that the accused was a person of good character prior to his commission of this offence.

Mitigating circumstances

The accused’s plea of guilty to the charge and the fact that he is a first offender are the only mitigating circumstances in this case.

Aggravating circumstances

The aggravating circumstances are: (a) the accused and the victim have a close family relationship, they being first cousins; (b) the victim was a virgin at the time of this offence; (c) the undoubted emotional and psychological harm suffered by the victim; (d) the psychological effects on the victim of what happened must also have been more serious compared to a victim with prior sexual experience; and (d) the age difference of 22 years between the accused and the victim. Even though the accused had a knife in his possession, there is nothing in the summary of facts to show or even suggest that he used the knife to threaten the victim.

The decision

In passing sentence in this case as in most rape cases, considerations of retribution and deterrence take priority over considerations of rehabilitation. The sentence must, in general, reflect the gravity of the crime of rape. The sentence must also serve not only to deter the accused from again committing the crime of rape but other like-minded men from doing so. In saying this, due regard must still be had to the particular circumstances of this case.

The trend in the recent past shows a marked increase in the levels of sentences passed in rape cases where the accused is the natural or step father and the victim is a natural or step daughter who is normally in a position of vulnerability. In such cases there was a relationship of trust between the accused and the victim and a serious abuse of that trust by the accused: see Police v Sione [2006] WSSC40 and the cases cited therein. The present case is different. Even though the fact that the accused and the victim are first cousins is an aggravating factor, one cannot infer from the material before the Court that there was a relationship of trust between the accused and the victim so as to put this case in the category of the abuse of trust cases.

In recent rape cases where there was no relationship of trust between the accused and the victim, sentences which were imposed ranged from 3 to 5 years imprisonment. In Police v Savea [1999] WSSC 54, a 23 year old accused after changing his plea from not guilty to guilty to a charge of rape was sentenced by Wilson J to 4 years imprisonment. In Police v Afato [1999] WSSC 8, a 38 year old accused who pleaded not guilty to the charge of rape was sentenced after a contested trial by Wilson J to 5 years imprisonment. In Police v Tupai [2000] WSSC 38, a 16 year old accused was sentenced by Vaai J to 3 years imprisonment after a plea of guilty to a charge of rape. The present range of 3 to 5 years imprisonment for rape cases where there was no relationship of trust between the accused and the victim will have to be reviewed in the near future.

All cases of rape which have come before the Court for sentence, whether they involved a relationship of trust between the accused and the victim or not, have always been dealt with by a sentence of imprisonment. The levels of sentences imposed in cases which involve a relationship of trust between the accused and a victim have generally been much higher than the levels of sentences imposed in cases where there was no such relationship of trust.

Having regard to the factors already referred to and in particular the mitigating and aggravating circumstances of this case, a custodial sentence should be imposed. The accused is convicted and sentenced to 4 years imprisonment.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution
A Roma Law Firm for defendant