Police v Pama [2007] WSSC 12 (28 February 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

VINE AMITUA PAMA
male of Vaitele-fou and Salimu Faga, Savaii.
Accused

Counsel: L M Su’a for prosecution
Accused in person

Sentence: 28 February 2007

SENTENCE

The accused who is now 18 years old, but 17 years and 5 months old at the times of the present offences, is a male from the village of Faga in Savaii. He is appearing for sentence on one count of rape which carries a maximum penalty of life imprisonment and four counts of having sexual intercourse with a girl over the age of 12 years and under the age of 16 years each of which carries a maximum penalty of seven years imprisonment.

As it appears from the amended summary of facts admitted by the accused, he was at the material times living in the family of the 14 year old victim at Vaitele-fou in Upolu. In April 2006, the accused entered the victim’s bedroom by climbing through a gap between the wall and ceiling of the bedroom. The victim was lying on her bed. The accused then lay next to her and told her not to make any noise. The accused then climbed on top of the victim, inserted his penis inside her vagina, and pinned the victim down onto the bed using his body while having sexual intercourse with her. The victim did not consent to such sexual intercourse.

On two other occasions in the same month of April 2006, the accused entered the victim’s bedroom and had sexual with her on each occasion. Then on two further occasions in the same month, the accused again had sexual intercourse with the victim. As a result, the victim became pregnant.

In the victim impact report, the victim told the Office of the Attorney General that this was the first time she had experienced anything of this sort. This implies that the victim was a virgin at the time she was raped. It is implicit in the victim impact report that the victim was attending school and stopped going to school when she became pregnant. She now feels a lot of anger and hatred towards the accused because of what has happened.

As it appears from the pre-sentence report, the accused told the probation service that the victim is an adopted daughter of her paternal aunt and husband with whom he was staying at Vaitele-uta and going to work in Apia. With his wages from his job, the accused helps his parents in Savaii with their village and church obligations. The pre-sentence report also shows that the accused is the youngest of his parent’s children and had attended school up to Year 12. The accused was also described by his older sister to the probation service as an obedient, respectful and kind person. He is also a first offender. He and his father have also apologised to the mother of the victim. He also showed deep remorsefulness during his plea in mitigation and promised never to offend again.

Relevant sentencing principles

When passing sentence in cases of rape, this Court said in Police v Talisoa Mika [2006] WSSC 61:

"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 Niupulusu (2005); Police v Fuifatu "Tapuai Sione [2006] WSSC 40; Police v Vaise Taumaola Tavalaau " [2006] WSSC 54".

When passing sentence in the case of young offenders generally, this Court in Police v Solomona Salu Saipele [2006] WSSC 1 referred to the approach adopted by the New South Wales Court of Criminal Appeal in R v MA [2004] NSWCCA 92 where Dunford J, with the concurrence of the other presiding members of the Court, said:

"[27] Deterrence, retribution and protection of the community are not to "take precedence to the exclusion of rehabilitation, but neither is "rehabilitation to take precedence over deterrence, retribution and "punishment. All must be balanced in the overall synthesising of the "sentence.

"[28] It is true that in the case of young offenders, there is generally "greater emphasis given to rehabilitation and less to deterrence than in "the case of adult offenders, but that depends in part on the age of the "young person and the circumstances of the offence; and there comes a "point at which the seriousness of the crime committed by a young "offender, particularly if a crime of violence, is so great that the special "attention normally given to rehabilitation in the case of young offenders "must give way, and greater emphasis given to punishment and "deterrence. The relevant principle was summarised in the joint "judgment of this Court in R v AEM Snr and Ors [2002] NSCCA 58 at "[97]-[98] as follows:

"It is well accepted that in the case of youth, general "deterrence and public denunciation usually play a "subordinate role to the need to have regard to "individual treatment aimed at rehabilitation. "However, important is that principle, it cannot "defeat the primary purpose of punishment nor in "circumstances where young offenders conduct "themselves in a way which an adult does, can it "stand in the way of the need to protect society."

The Court in R v MA then quoted from R v Nicholas (1991) 57 A Crim R 391 where Lee A J said at p.395:

"However, there is a point at which the seriousness of "the crime emitted by a man of 19, even though a "young man is of such a nature so great, that the "principle must, in the public interest, give way."

The principles set out in R v MA [2004] NSWCCA 92 are not to be understood to mean that it is only in cases where the seriousness of the crime committed by a youth is so great that considerations of retribution and deterrence will take precedence over rehabilitation. Those considerations are also likely to take precedence over rehabilitation in the case of young offenders who are repeated offenders and in respect of whom previous opportunities for rehabilitation given by the Court have not worked. Such young offenders are likely to go to prison, even if the seriousness of the offence on which they are again appearing for sentence is not so great as, for instance, the crime of rape.

The approach which has been followed by the Samoan Courts when passing sentence in the case of young first offenders was explained in Police v Totini Simanu [2007] WSSC4 where this Court said:

"In passing sentence on a young first offender, the age of the offender is "a most significant mitigating feature. Rehabilitation rather than "retribution or deterrence is usually the primary objective. The reason "for this is the concern of the Courts that a custodial sentence is likely to "expose a young first offender to corrupting influences and therefore the "risk that such an offender will be worse off at the time he comes out "compared to what he was when he went in, and that may cause him to "embark on a path of crime. In consequence, a non-custodial sentence "such as a term of term of probation is usually imposed in the case of a "young first offender. However, there are cases where the gravity of the "offence is so great that the only appropriate sentence in the "circumstances is one of imprisonment, notwithstanding the youth of the "offender and his previous good character."

This approach is reflected in the case of Police v Va’a Tapuai [2000] WSSC 38 where Vaai J in passing a sentence of 3 years imprisonment on a 16 year old first offender for the rape of a 12 year old girl said:

"[There] are some crimes which are so serious that the offender must be "punished with a prison sentence even when the offender is young as "you are, even if the offender is a first offender as you are, and even if "the offender is remorseful as you are. This is such a crime and it gives "me no pleasure to see a young man like you go to jail."

Even if the seriousness of the crime committed is so great that a prison sentence is called for, the Court does not necessarily disregard the youth of the offender and his previous good character if he is a first offender. The youth of the offender and his previous good character are still important mitigating factors when determining the duration of the prison sentence. The Court also does not necessarily abandon all hope of rehabilitation when imposing a prison sentence on a young first offender.

Decision

In passing sentence, I bear in mind the principles as I have set out. I take into account in mitigation of penalty the accused’s plea of guilty at the earliest opportunity, his expression of remorse to the Court, the apology by the accused and his father to the mother of the victim, the youth of the accused, and the fact that he is a first offender. On the other hand, I also have to take into account the seriousness of the charges particularly that of rape, the total offending, the age of the victim, the fact that the victim was a virgin when she was raped, the impact of the accused’s offending on the victim which has made her pregnant and had to stop going to school, and the emotional and psychological harm suffered by the victim. I also take into account the fact that the accused was staying with the family of the victim so that he could attend to his job in Apia and that his actions against the victim constitute a breach of the victim and her family’s trust and generosity. The victim is also a daughter, though an adopted daughter, of the accused’s paternal aunt and in Samoan custom that means the victim is a sister of the accused.

In weighing all of those matters the accused is convicted on all charges and sentenced to 4 years imprisonment on the charge of rape and 2 years imprisonment on each of the charges of having sexual intercourse with a girl over the age of 12 years and under the age of 16 years. All sentences are to be served concurrently.

The accused has requested that he be allowed to serve his sentence in Savaii. That would be a matter for the prison authorities to decide. I recommend, however, that the accused serves his sentence at the newly established Juvenile Centre at Olomanu which is part of our prison system but a rehabilitation Centre for young offenders.

CHIEF JUSTICE

Solicitor
Attorney General’s Office, Apia for prosecution