Police v Peo [2008] WSSC 107 (16 December 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

TANULOLE PEO
male of Moamoa and Vailima.
Accused

Counsel: K Koria for prosecution
R T Faaiuaso for accused

Sentence: 16 December 2008

SENTENCE

The charge

[1] The accused appears for sentence on a charge rape to which he had pleaded not guilty but was found guilty after a defended hearing.

The offending

[2] The accused is a 40 year old male. At the time of the offence he was 38 years old. The victim is a 23 year old female. At the time of the offence she was 21 years old.

[3] At the material time, the victim, who is intellectually handicapped and is a person with special needs, was attending the Loto Taumafai School for handicapped persons at Motootua. The accused was employed as a bus driver for the school.

[4] One of the duties of the accused as a bus driver for the school was to pick up the students from their homes in the morning and take them to the school and then after school in the afternoon to take the students home. When the accused picked up the students in the morning, he was normally accompanied by a teacher from the school.

[5] The accused normally picked up the victim from her home at 6am. He would then go around in the school bus to pick up other students.

[6] On Tuesday morning 24 October 2006, the teacher who normally accompanied the accused in the bus was sick. So the accused went on his own to pick up the students. He appeared to have made an early start that morning because when he arrived at the victim’s home, it was before 6am and it was still dark. After he picked up the victim, the accused drove to pick up another student who lives around the same area as the victim. When the bus arrived at a dark spot on the road, the accused stopped the bus.

[7] According to the victim, the accused then came to where she was sitting in the bus and laid her down, removed her skirt and panty and penetrated her vagina with his penis. The victim did not consent.

The accused

[8] The accused as earlier mentioned, was 38 years at the time of the offending. He was employed as a bus driver by the Loto Taumafai School for persons with special needs. One of his duties was to drive the school bus to pick up the students in the morning and bring them to school and then after school to return the students to their homes.

[9] The pre-sentence report shows the accused as a hardworking person who is married with two young children. The testimonials provided for the accused by his church and village portray him as a person of good character who is hardworking and honest. He also serves his family, church and village. The testimonial from the Government Ministry where the accused is currently employed also portrays him as a person who is dependable and of good character.

[10] In the year 2000, the accused was convicted and fined for a minor offence which is of quite a different nature from the offence of rape for which he is now appearing for sentence. I will treat him as a first offender for present purposes.

[11] However, when the accused was interviewed by the probation service for the preparation of the pre-sentence report, he was still denying the offence for which he has been found guilty. This is not a sign of remorse.

The victim
[12] As mentioned earlier, the victim is an intellectually handicapped person. Such a person is now commonly referred to as a person with special needs.

[13] There is no victim impact assessment report. However, it is inevitable that the victim would have suffered psychologically from what the accused did to her. It also appears from the evidence of the director and the principal of the Loto Taumafai School that the staff of the school were emotionally affected by what the accused did to the victim.

Aggravating factors

[14] There are several aggravating factors in this case. These are: (a) breach by the accused of his employer’s trust, (b) breach by the accused of the victim’s trust and taking advantage of her intellectually handicapped condition, (c) the age difference of 17 years between the accused and the victim, and (d) the apparent lack of remorse.

Mitigating factors

[15] The accused’s personal circumstances and the fact that he is a first sexual offender may be considered as mitigating.

New Zealand cases on rape of an intellectually handicapped female

[16] As this is the first case of rape of an intellectually handicapped female that this Court has had to pass sentence on, I have decided to refer to similar cases in New Zealand as to how this type of case is dealt with in that jurisdiction for sentencing purposes.

[17] In the case of R v Sand [1999] NZCA 132, the victim a 31 year old female with severe intellectual disability attended an IHC Day Service Centre where the accused a 28 year old male was employed. The accused supervised one of the activities attended by the victim. The victim became pregnant and the accused admitted he had raped the victim. He was a first offender. He entered an early guilty plea. He was sentenced to 8½ years imprisonment. On appeal, his sentence was reduced to 7 years imprisonment.

[18] The second case was R v Templer [1999] NZCA 212. The victim was a severely handicapped woman who resided in an IHC home. The accused was her key caregiver upon whom she was highly dependent. She became pregnant by the accused. It was accepted that the victim was incapable of consenting to sexual intercourse. The accused was charged with having raped her. He pleased not guilty but after a defended hearing he was found guilty and sentenced to 9 years imprisonment. On appeal against sentence, the appeal was dismissed.

[19] The third case was R v Redden [2000] NZCA 181. In that case, the accused was charged with the rape of his 16 year old step-daughter who was mentally handicapped. He was also charged with three counts of unlawful sexual intercourse and one count of indecent assault. He pleaded not guilty. After a defended hearing he was found guilty and sentenced to 10 years imprisonment. On appeal against sentence, the appeal was dismissed.

[20] I should note here that at the time of the above three cases, the starting point in New Zealand for sentence in a contested rape trial was 8 years. This Court has in the recent past adopted a strict approach to sentencing in rape cases as shown by a number of sentences exceeding 10 years which have been imposed for rape. However, in the ultimate analysis, the sentence depends on the facts of each case.

The decision

[21] There are no mitigating factors relating to the offending in this case. So having regard to the aggravating factors relating to the offending, I will take 10 years as starting point for sentence. I will give a limited discount for the accused’s personal circumstances and the fact that he is a first sexual offender and deduct 12 months. That leaves 9 years.

[22] The accused is sentenced to 9 years imprisonment.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia, for prosecution
R T Faaiuaso Law Firm for accused