Police v Misi [2007] WSSC 25 (4 April 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

ITI TUPUOLA MISI
male of Matautu Falealili
Defendant

Presiding Judge: Justice Vaai

Counsel: Ms Sua for Prosecution
Mr Ainuu for Defendant

Sentence Date: 4 April 2007

SENTENCE BY VAAI J

The accused aged 49 years is appearing for sentence on one count of rape, one count of attempted rape, one count of carnal knowledge and two counts of sexual intercourse with his stepdaughter who was at the time living with him as a member of his family. The offences were committed in November and December 2005, were brought to the attention of the police in February 2006 and informations laid in March 2006. He pleaded not guilty on the 10th April 2006 and the trial was set to commence on the 26th February 2007. A few weeks before the trial date the accused withdrew his not guilty plea and was further remanded for a probation report and for sentence.

At the time the offences were committed the victim who was then 15 years of age was living with the defendant in his household as his stepdaughter.

Attempted Rape

Whilst the victim was asleep the accused woke her up and gave her a bottle of pepsi which the victim drank. Unknown to the victim the drink was laced with alcohol; she went back to sleep and woke up some moments later when she felt someone caressing her legs and fondling with her vagina. It was the accused. In response to her inquiry the accused told the victim not to tell her mother.

Rape

The victim and her younger brother went with the accused at night to check the fishing net. At the beach the victim and her younger brother sat down to wait for the accused who walked to the other side of the beach. On his return the younger brother of the victim was asleep, the accused told the victim to walk with him but she refused and the accused walked away. On his return he led the victim away to what is described in the summary of facts as a rock-strewn area where the accused started to undress the victim. She became agitated. She asked the accused what he was doing and he gave the usual response not to tell her mother. As she tried to run away the accused pulled her causing the victim to fall on her elbows and knees enabling the accused to fully undress her before inserting his fingers and subsequently his penis in her vagina. She cried in pain. She bled. She gave up and the accused continued until he was satisfied. In response to her cry of despair he told her if she tells her mother he will kill her.

Sexual Intercourse with girl living with him as a member of his family

Whilst the mother was away from home the accused summoned the victim over to the bathroom to bring his towel. Upon her arrival she was pulled into the bathroom where they had sexual intercourse. She was again threatened if she speaks to her mother.

On another occasion the accused went to the victim’s mosquito net late in the night and had sexual intercourse with the victim. According to the summary of facts the mother was absent from the house that night.

Carnal Knowledge

At the house while the victim was changing into her clothes, the accused went over, laid her down, had sexual intercourse with her and told her to leave.

Submissions by Defence Counsel

Mr Ainuu pleaded leniency for the accused on basically five grounds namely:

(a) the accused at the age of 49 years is a first offender
(b) he is remorseful
(c) the accused has made amends with the victim and her biological father.
(d) The accused is of good character and his offending was out of his normal character.
(e) He has pleaded guilty to the offences.

Submissions by the Prosecution

The courts attention was drawn to the following aggravating factors to justify lengthy custodial sentences:

(a) Vulnerability of the victim.
(b) The offending was premeditated and deliberate.
(c) The psychological and emotional trauma of the offences on the victim.
(d) The young age of the victim. She was 15 years at the time.
(e) In committing the offences the accused breached the trust entrusted on him by the victim as her guardian. She was 5 years of age when the accused raised her as his daughter.
(f) Multiplicity of offending.

Discussion

When considering sentences for sexual offences, particularly in rape cases the primary considerations must be of retribution and deterrence to reflect the gravity of the offence, to punish the offender, to deter him and other like minded people from offending and re-offending and to mark society’s condemnation of such conduct. This is particularly relevant in this case where the accused is 49 years and the victim is his stepdaughter and I adopt the remarks by Sapolu CJ in Police v Sione 14 July 2006 in passing sentence for rape:

"Rape or incest cases where the accused is a father and the victim is a daughter always involve a serious abuse by the father of his daughter’s trust in him. As is often the case, the abuse is accompanied by violence and threats of violence. The victim especially if she is of young age, is in a most vulnerable position because of her natural dependency in the accused for support and protection as well as the physical superiority of the accused over her. Normally, the victim will have the natural love and affection of a child for her father and expects the same from her father. Thus when a daughter is sexually abused by her own father, one of the initial feelings must be one of confusion as it happened in this case. This confusion may transform into fear and anger as it also happened in this case, especially if the abuse is repeated against the will of the victim."

Offences of sexual abuse are disturbingly prevalent and there is an urgent and real need for appropriate deterrent measures. Young girls are entitled to expect that within their own families they would grow to maturity unmolested and undefiled by the lust of their fathers or stepfathers. The accused here had planned to take out his sexual desire on the victim whom he had raised as a daughter for ten years. On the night he raped her she cried in pain, she was helpless, she bled, she was threatened, and her protector was her attacker. The accused had calculatingly laid a plan to take her away from home to the beach late at night for his sexual desire. That incident of rape was followed by several acts of intercourses. Luckily for the victim she had the courage to run away from home and sought refuge with her biological father. What was once she called home will be a constant reminder to her of pain, confusion, fear and anger especially so when the victim’s mother (according to the victim impact report) who was made aware of the accused’s offences simply tried to hide them. I do not accept the offending is out of character for the very simple reason he would have continued to treat the victim as a sex object if she had not run away. As to his character he is described in the pre sentence report and in the attached testimonials as a lay preacher for the congregational Christian church, a Sunday school teacher and a regular church goer. In view of the nature of the offence I will not consider his so called good character as a mitigating factor. As for his guilty plea as a mitigating factor he will not be entitled to the full benefit normally granted since he maintained his not guilty plea for almost twelve months. He is nonetheless entitled to a deduction of 6 months as his guilty plea made it unnecessary for the victim to give evidence and relive the incidents. Is he remorseful? My answer is a simple No; the offences were premeditated; his first attempt was unsuccessful because the victim woke up; he subsequently succeeded; he continued to use the victim to satisfy his desires; he threatened the victim; he would have continued on if she did not run away. In my view the accused is pleading remorsefulness because he now fears the consequences of his action.

The sentence to be imposed is to express denunciation by society of sexual abuses on women and young girls. As a 49 year old offender a lengthily custodial sentence should be imposed to reflect the gravity of his offences and to deter others. Sentences imposed for similar offences in the part must also be considered as unjustified disparities between levels of sentences in similar cases create public confusion and undermine confidence in the sentencing process. But there would always be disparities given the different factual situations amongst cases. Given the aggravating factors and in particular the violence and threats involved when rape was committed I consider 12 years as a starting point. I deduct as earlier stated 6 months for the guilty plea and the accused is therefore sentenced to 11 years and 6 months for rape. For attempted rape the accused is sentenced to 3 years imprisonment. And for the 3 offences of unlawful sexual intercourse the accused is sentenced to 2 years imprisonment for each offence. All sentences to be served concurrently.

JUSTICE VAAI

Solicitors
Attorney General’s Office, Apia for prosecution
Meredith & Ainuu Law Firm for accused