Police v Taito [2007] WSSC 31 (4 May 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

ELISARA TAITO aka LAULU ELISARA TAITO
male of Saoluafata
Accused

Counsel: A Lesa for prosecution
Accused in person

Sentence: 4 May 2007

Sapolu, CJ

SENTENCE

The charge

The accused is charged with the crime of rape which carries the maximum penalty of life imprisonment. To the charge he has pleaded guilty at the earliest opportunity.

The offending

At the time that the offence for which the accused is now appearing for sentence was committed, the accused, his wife, and their children, which includes the victim, were living at the village of Malie.

According to the summary of facts which has been admitted by the accused, between 1 July and 30 July 2006 whilst the accused’s wife, who is also the victim’s mother, was working late at night, the accused approached the victim while she was sleeping. The victim was awoken when she felt her shorts and panties being taken off by someone. She saw that it was the accused. The accused then tied the victim’s mouth with a sheet to prevent her from screaming.

He then parted the victim’s legs pinning her down with his legs before thrusting his private part into her private part. The victim tried to move away from the accused but her relentless efforts were to no avail because of the accused’s weight. The victim was in pain but the accused carried on until he ejaculated. The victim did not consent to the accused’s actions. As a result of what the accused did, the victim became pregnant.

The victim

The victim is now 15 years old but was 14 years at the time the present offence was committed upon her. She was also attending school at the time. She is a step-daughter of the accused being a natural daughter of the accused’s wife from a previous relationship. At the time of this offence, the victim was living with her mother and the accused at the village of Malie and had been living together with her mother and the accused for six years.

As a result of the accused having sexual intercourse with the victim, she became pregnant and stopped attending school. According to the prosecution’s sentencing memorandum, the victim was expected to give birth last month. So she has probably given birth already. The victim is unlikely to be able to return to school.

The accused

The accused is a male from the village of Saoluafata. At the time of this offence he was 45 years old. So the age difference between him and the victim is 31 years. He is the step-father of the victim. As it appears from the pre-sentence report, the accused refers to the victim as his daughter during his interview with the probation service.

The accused told the probation service that the reason why he committed this offence was because his wife was again going out to play bingo at night leaving him and their children at home. He gave in to temptations by the devil. If this is true, then even though it provides no excuse for what the accused did, it sounds a warning to those mothers who go out to play bingo at night time leaving their daughters from previous relationships by themselves with their current husbands at home.

The accused has no previous conviction.

Mitigating features

The only mitigating features in this case are the accused’s plea of guilty to the charge which has spared the victim the trauma of having to give evidence in Court and re-live the painful experience she had been through and the fact that he is a first offender.

Aggravating features

The abuse by the accused of the victim’s trust in him, the vulnerability of the victim, the age difference of 31 years between the accused and the victim, the fact that the victim has become pregnant, and the fact that the victim has stopped attending school and is unlikely to return to school due to this offence are all aggravating features. The sentencing memorandum provided by the prosecution also states that the victim was a virgin prior to the time the present offence was committed.

The decision

The trend of sentences in the recent past for cases of rape where the accused is a natural or step father and the victim is a natural or step daughter has shown a marked increase in the level of sentences imposed by the Court in this type of case: see Police v Sione [2006] WSSC 40; Police v Misi [2007] WSSC 25.

In this case, the prosecution has asked for a minimum sentence of 7 years imprisonment. In my view, 7 years imprisonment would be the appropriate starting point for sentencing in this case. I will deduct 25% or one year and nine months for the accused’s plea of guilty at the earliest opportunity. I will show further leniency to the accused because of the fact that he is a first offender by further deducting three months. I will then add on two years and three months to take into account the aggravating features and the need for deterrence in this type of case which is apparently continuing to grow in number at a high rate.

The accused is accordingly convicted and sentenced to 7 years and 3 months imprisonment. The time the accused has spent in custody is to be deducted from that sentence.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution