Police v Eliu [2008] WSSC 16 (3 March 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

SIKOTI ELIU
male of Faleasiu
Defendant

Presiding Judge: Justice Vaai

Counsel: Ms Chang and Mr Koria for prosecution
Mr Malifa for defendant

Sentence Date: 03 March 2008

SENTENCE BY JUSTICE VAAI

After a defended hearing the panel of assessors found the accused guilty of rape of an 18 year female between June and October 2004. The incident was not reported to the police until September 2005. At the time of the offence the accused was living together with the victim’s mother as husband and wife.

The Offence

In the very early hours of the morning and before day break in June 2004 the victim’s mother left the house to catch the bus for work. Soon after the accused went over to where the victim was asleep in a mosquito net. He had a sheet wrapped around him. After entering the net he removed the sheet wrapped around him, he undressed the victim, sucked her breasts and kissed her lips. She tried to struggle but the accused was too strong. He proceeded to have sexual intercourse with her. Afterwards the accused told the victim not to tell her mother or other members of the family. When the mother returned home from work that day the victim told the mother what the accused did to her. The victim was subsequently removed from the home and lived somewhere else. The incident was reported to the police when the mother’s sister who lives in the same village found out in September 2005 and informed the police.

The Victim

The victim is a person with special needs. She is mentally and intellectually retarded; her daily routine, being restricted to domestic activities at home. She is currently living with a family at Satapuala village and has never been visited by the mother since she was removed to live at Satapuala. She told the probation service that her mother seems to love the accused (the husband) more than her (the victim). I accept from the evidence that the victim was frightened when the accused entered her mosquito net and forcefully had sexual intercourse with her. She referred to the accused as her stepfather. After all they have been living together in the same household since the end of 2002.

The Accused

The accused is 39 years, now married to the victim’s mother and according to the probation report there is a two year old child from that union. Although his level of education can be accurately described as low his employment record is a very impressive one in the field of carpentry having been employed in that trade since 1989. Indeed his current employer since 1992 speaks warmly and highly of the accused namely to quote some of the comments:

(i) He has been working with my company for some time as a leading hand supervisor. He has been a reliable and responsible employee compared to other well educated employees of my company.

(ii) He has also shown unlimited support in resolving major issues involving other employees of the company. This is mainly to do with discouraging people from drinking beer and other activities which could lead to the undesirable problems.

I accept from the probation report that the accused has taken full responsibility for his actions and has shown true remorse for his offending. It has also been confirmed that the matter has been resolved between the accused and the victim and the victim’s mother.

Aggravating Factors

There are several aggravating features of the accused’s offending which are as follows:

(a) the accused took advantage of the victim’s disability in the sense that any accusation by her against the accused would be treated with suspicion. Indeed the victim’s mother did nothing when the victim told her what the accused did early that morning after the mother left for work.

(b) the accused was treated by the victim as her stepfather. As a stepfather she placed her trust in him as her protector and guardian. The trust placed on the accused by the victim has been shattered.

(c) the age difference of 18 years between the accused and the victim as well as the superiority in strength of the accused is also a significant factor.

(d) undoubtedly that for this particular victim with her special needs there has been emotional and psychologically harm exacerbated by being made to live with strangers as a result of the offence.

(e) the offence was premeditated. The accused told the probation service that the offence was premeditated.

Mitigating Factors

The mitigating factors identified from the probation report and counsel’s submissions are:

(a) The accused’s previous good record and a first offender at the age of 39.
(b) He is genuinely remorseful.
(c) He has apologised to the victim and the victim’s mother.

Discussion

Counsel for the accused invited the court to display mercy after referring to the probation report, and referring to a number of authorities including the Court of Appeal decision in Police v Fa’avaoga (unreported 14/9/07 C.A 05/2006) which also emphasised that although the sentencing judge retains a residual authority to display mercy, that right does not relieve the court of its responsibility.

The crime of rape is a very serious offence punishable by a maximum penalty of life imprisonment. Counsel for the prosecution in her written submission referred the court to some of the cases in which this court has imposed sentences of imprisonment on accused fathers convicted of rape on their daughters. An imprisonment sentence of not less than 13 years is sought by the prosecution.

Whilst the sentence for each case must be determined by the surrounding circumstances of the particular case the range of sentences imposed in the past is a legitimate consideration to maintain the level of sentence and to avoid unjustified disparities. I will refer to some of those as well as other cases not referred to by the prosecution. In Police v Niupulusu 22/7/05 a sentence of 20 years was imposed on a father on four counts of rape of his daughter.

In Police v Z 13/7/05 the accused father was sentenced to life imprisonment for ten counts of rape of his two daughters. Concurrent sentences for charges of incest, attempted incest, threatening to kill were also imposed. In Police v Sione 14/7/06 a 42 year old father was sentenced to 8 years imprisonment for the rape of his 16 year old daughter. In Police v Mika a 54 year old accused, charged with the rape of his 21 year old daughter in law was sentenced to seven years and three months imprisonment. In Police v Misi 4/407 the 49 year old accused was the stepfather of the 15 year old victim. He was imprisoned for eleven and half years.

It is common knowledge that a custodial sentence is the appropriate sentence. Counsels have not argued for any other alternative sentence. Due to the very serious nature of the crime of rape and the need by society to protect women and young girls from sexual violations and abuses, the court has generally considered retribution and deterrence to have priority over rehabilitation. As a consequence, custodial sentences are usually imposed to punish the offender; to deter him and other like minded people; to reflect the gravity and seriousness of the offence and to express denunciation and condemnation by society: See Police v Kum 18/8/2000 Samoa Court of Appeal; Police v Niupulusu (supra); Police v Sione (supra); Police v Misi (supra).

In considering the starting point for the appropriate sentence to be imposed I accept that violence was not engaged in the commission of the offence; but at the same time the accused took advantage of his strength and size. In Police v Misi (supra) the accused took the victim away from home to the beach and succeeded to rape her with the aid of violence. In passing sentence the court proceeded on 12 years as a starting point. In Police v Mika the court accepted violence was used and proceeded on 7 years as a starting point. In Police v Sione the accused threatened the 13 year old victim and showed her a knife before he raped her. The sentence of 8 years imprisonment would suggest a national starting point of about 10 years.

In this case I consider seven years imprisonment as the starting point. For his previous good record and his genuine remorse I deduct 12 months reducing his sentence to six years. For the aggravating features namely the breach of trust and taking advantage of the victim’s disability I will add six months; and for the consequences and impact of the offending on the victim already referred to I will add another six months. The accused is accordingly sentenced to 7 years imprisonment.

JUSTICE VAAI