Police v Nunuimalo [2007] WSSC 78 (3 October 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

VAELA’A NUNUIMALO
male of Solosolo.
Accused

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

Sentence: 03 October 2007

SENTENCE

The charge

The accused appears for sentence on one count of having sexual intercourse with a girl over the age of 12 years and under the age of 16 years pursuant to s.53(1) of the Crimes Ordinance 1961 which carries the maximum penalty of 7 years imprisonment. He pleaded guilty at the earliest opportunity.

The offending

The brief facts of this matter as they appear from the prosecution’s amended summary of facts are that between 31 July and 1 September 2006, the victim was at the Apia National Hospital to take care of her sick mother who was admitted in Acute 7. The accused was at that time also admitted as a patient in a room next to the room of the victim’s mother.

On the day of the present incident, the victim went outside of her mother’s room to empty a pail of her mother’s bathing water. When the victim came back to her mother’s room, the accused called out to her from inside his room. The victim then entered the accused’s room and the accused took off her lavalava, pulled down her panties and laid her on his bed. He then spread her legs apart, inserted his penis inside her vagina, and had sexual intercourse with her.

The accused

The accused is a 29 year old male from the village of Solosolo. He is single and is currently employed as the principal information technology officer in the Ministry of Health. At the time of this offence he was 28 years old.

As it appears from the pre-sentence report the accused is well-educated. He graduated from the National University of Samoa with a Bachelor of Science degree majoring in computers and mathematics. He started as a network administrator with the Ministry of Health in 2002, promoted to the position of senior network administrator in 2003, and further promoted to his current position of principal information technology officer in 2005. The report from the Ministry of Health shows that the accused is a hard-working, competent and reliable civil servant who has also shown initiative in his work. He has even attended workshops and conferences overseas to further his skills and knowledge. So the accused has had a successful work history.

A brother of the victim appeared and informed the Court that the accused’s family has performed a ifoga to his family and it was accepted. The pre-sentence report states that the accused expressed genuine regret and remorse to the probation service and said that he feels ashamed that he has let himself down and his family.

The accused is a first offender and as it appears from the pre-sentence report and attached testimonials, he was a person of good character.

The victim

The victim is now 15 years old but was 14 at the time of this offence. She was also attending primary school when this incident occurred to her.

As the victim impact report shows, the victim became pregnant as a result of what the accused did to her and has already given birth to a baby who has been adopted and looked after by an older sister. When the victim became pregnant, she dropped out of school. She became ashamed of what had happened to her because of the gossip in her village. Her movements were confined to her house except when she went to the shop to buy necessities for her family. She wants to go back to school but does not know where to go to attend school again. No doubt the victim has suffered psychological harm.

The victim’s wishes

When sentence was to be passed on Monday, 01 October 2007, a letter from the victim was produced to the Court. In that letter the victim says that she is now living with the accused and she asks the Court for the opportunity to continue to remain with the accused so that he can provide for the maintenance of her child.

As to the significance to be given to the wishes and forgiveness of a victim for the purposes of sentencing, Professor Warner in Sentencing in Tasmania (2002) 2nd ed states at para 3.420 at p87:

" A victim’s wishes or forgiving attitude cannot be given priority or be allowed to prevail over broader community interests. And fairness suggests a sentencing outcome should not depend on whether a victim is vengeful or forgiving. However, in some cases Courts have been prepared to give a forgiving attitude some weight. In McGhee (1994), a case of attempted murder, where the victims had indicated they had forgiven the offender and did not want him to be punished, Green CJ said the victim’s attitude and wishes ‘whilst not determination are factors which militate against giving much weight to considerations of retribution and denunciation. R v F (1998) was a case of indecent assault where the victims were daughters of the offender. Their ambivalent response to the offender-emotional hurt on the one hand and sadness and concern for him on the other – was considered by Slicer J to be a significant factor in the determination of sentence and one which permitted some amelioration of the penalty. In other jurisdictions, Judges have sometimes given considerable weight to victim forgiveness in cases of marital rape. But this is controversial. At most, a victim’s wishes and forgiveness should only moderate the sentence to a limited degree and only when the sentence further aggravates the distress of the victim". (emphasis mine)

As already mentioned, the victim impact report shows that the victim’s child has been adopted and taken care of by the victim’s older sister. That seems to have changed as the accused and the victim and her child are now living together. It would also seem that in her present situation, the victim would not be able to go back to school as she had wanted to. I am also concerned that the victim is 15 years old and therefore still under 16. By living together with the accused now, it means the accused is still committing the same offence for which he is appearing for sentence.

After careful consideration of the relevant circumstances, I have decided to give no credit to the accused because of the wishes of the victim. Her baby had been adopted and taken care of by her older sister so that she would be free to go back to school if she wanted to. There is also nothing to prevent the accused from providing for the maintenance of the child without having to live with the victim who is still under 16.

Aggravating features

The accused and the victim were strangers to one another when this incident occurred. Where this incident occurred was not a private place; it was inside a ward for patients in a public hospital. The age difference between the accused and the victim is 14 years. The other aggravating features of this offence is its impact on the victim which has already been set out. The accused is also a well-educated person and must have fully appreciated the gravity of what he was doing.

Mitigating features

The accused’s plea of guilty at the earliest opportunity, the fact that he is a first offender, and the ifoga performed by his family and accepted by the victim’s family, are mitigating features. However, I would not give the usual discount of 1/3 for a guilty plea at the earliest opportunity, because the accused must be still committing the same offence for which he is appearing for sentence by living together with the victim who is still under 16. The accused has also been penalised by his village and his family has apologised to the village. I would also accept that the accused is regretful for his actions in the sense that it could affect his current job and career.

The decision

The offending in this case and its consequences for the victim are much more severe compared to other cases of this type that were recently before this Court for sentence. There is also nothing to show whether any substantial presentation of fine mats, money or foodstuffs accompanied the ifoga by the accused’s family to the victim’s family as is often the case with a ifoga made by the family of an offender to the family of a victim of an offence.

Having regard to the gravity of the offending in this case I will take 2 years imprisonment as the starting point for sentence. I will deduct 20% for the accused’s plea of guilty at the earliest opportunity. That leaves 17 months. I will deduct a further 4 months for the other mitigating features. That leaves 13 months.

The accused is sentenced to 13 months imprisonment.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution