Police v Mika [2006] WSSC 61 (30 November 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

TALISOA MIKA
male of Vailele-uta.
Accused

Counsel: A Lesā for prosecution
K Drake for accused

Sentence: 30 November 2006

SENTENCE

The charge

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

The offending

Even though the accused denied certain parts of the summary of facts prepared by the prosecution, I have decided after hearing evidence from the victim and the accused to accept those parts of the summary of facts and to reject the denials by the accused.

The accused and his family reside at the village of Vailele-uta. The victim is the de-facto wife of the accused’s son. The victim has two children and lives with her husband and their children together with the accused at Vailele-uta. At the time of this incident, the victim was six months pregnant with her third child.

On Friday 9 June 2006, the accused, one of his grandsons and the victim went to their family’s banana plantation situated inland of the neighbouring village of Letogo. This banana plantation leads down to a remote and isolated valley. When they reached there, the accused sent his grandson back to their home and instructed the victim to peel the skin off some fau tree branches to tie the bananas for them to take home. After the victim had peeled the skin off from the fau tree branches, she started knotting them together for the purpose of tying the bananas. The accused then joined the victim in knotting the fau skin. He then all of a sudden reached out and tied together both wrists of the victim with the fau skin. The accused then placed a knife which he used for fishing against the victim’s neck and removed her clothes. He then threw the knife away, laid the victim on the ground, pinned her down, inserted his private part inside her private part and had sexual intercourse with her. The victim could not resist the accused because of his strength and large frame. She could only scream for help but no one heard her screaming because they were too far down the valley. The victim did not consent to having sexual intercourse with the accused.

The accused

The accused is a 54 old male from the village of Vailele-uta. He is a fisherman and a planter. He is the breadwinner of his family. He is married and has children as well as grandchildren.

The accused is also a first offender. The pre-sentence report and the testimonial from the pastor of the accused’s village show that the accused had been a person of good character prior to the commission of this offence. The accused has also performed a formal apology to the family of the victim which was accepted. It is not clear what (if any) did the accused present to the victim’s family when he made his formal apology.

The victim

The victim is 21 years of age. She is the de-facto wife of the accused’s son and she stays with her husband and children in the accused’s house as members of his household. At the time of the offence, she was six months pregnant with her third child.

From the victim impact assessment report, it appears that the victim suffered injuries to her hands as a result of the fau skin that was used to tie her wrists together. She also had difficulty giving birth to her third child and she claims that she and her child almost died. Because of what the accused has done to her, the victim is now feeling ashamed and awkward to continue living with her husband’s family. She is also fearful for her safety and that of her children in case the accused’s family turns against her and her children because of this case. However, she cannot return to her family for they are angry with her for being "stupid". The victim has also restricted herself to the accused’s household because people of the village gossip about her and say disgraceful things to her about has happened which really hurts her. For the same reason she can no longer attend church on Sundays even though before this incident she used to enjoy attending church.

Mitigating circumstances

The mitigating circumstances in this case are the accused’s plea of guilty to the charge, the fact that he is a first offender, and his formal apology which was accepted by the family of the victim.

Aggravating circumstances

There are several aggravating circumstances in this case. These are: (a) the use of violence and threat of violence to overcome the victim, (b) the breach by the accused of the victim’s trust in him as her step-father and head of her household, (c) the fact that the victim was six months pregnant at the time of this offence, (d) the age difference of 33 years between the accused and the victim, (e) the impact of the offending on the victim as already referred to, and (f) the emotional and psychological harm which the victim has undoubtedly suffered.

The decision

In general, considerations of retribution and deterrence take priority over considerations of rehabilitation in rape cases. This is because of the very serious nature of the crime of rape and the need by society to protect women from such crime. So lengthy custodial sentences are generally imposed not only to reflect the gravity of the crime of rape and its condemnation by society, but also to punish the offender, deter him from re-offending, and deter like minded people from committing rape: see Police v Pati Nuipulusu [2005], Police v Fuifatu Tapua’i Sione [2006] WSSC 40 and Police v Vaisa Taunaola Tauvalaau [2006].

I have decided to take 7 years imprisonment as the starting point for sentencing in this case. I give the accused a 20% discount for his plea of guilty at the earliest opportunity. That reduces the sentence to 5 years and 7 months imprisonment. I deduct a further 4 months for the other mitigating circumstances, namely, the fact that the accused at age 54 years is a first offender and his formal apology which was accepted by the family of the victim. That further reduces the sentence to 5 years and 3 months imprisonment. I then take into account the aggravating circumstances which have been referred to and the sentence is restored to 7 years imprisonment. That is the sentence I propose to impose.

The accused is accordingly convicted and sentenced to 7 years imprisonment.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia, for prosecution
Drake & Co for accused