Police v Leota [2008] WSSC 21 (14 May 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

FELISE LEOTA
male of Vaitele-uta and Solosolo.
Accused

Editor's note: Sentence by Sapolu CJ

Counsel: L Su’a-Mailo and R Titi for prosecution
T K Enari for accused

Sentence: 14 May 2008

SENTENCE

The charges

1. The accused was originally charged with one count of rape and two counts of having sexual intercourse with a girl between the age of 12 years and 16 years to which he pleaded not guilty. When the charge of rape was withdrawn by the prosecution, the accused vacated his not guilty plea to the two counts of having sexual intercourse with a girt between the age of 12 years and 16 years and entered a guilty plea. Each count carries a maximum penalty of 7 years imprisonment. He is now appearing for sentence on those two count.

The offending

2. The facts of this matter appear primarily from the prosecution’s amended summary of facts and to a lesser extent from the evidence that was given by the victim and the accused at the hearing that was held in relation to the two disputed parts of paragraph 4 of the amended summary of facts.
   

3. The victim is now 16 years of age and has a husband. At the time of the offending she was single and 15 years of age. She does not attend school but stays at home to look after her niece. The accused is a 45 year old male from Vaitele-uta and Solosolo. He was 43 years old at the time of the offending. He has a de facto wife.

4. At the hearing of the disputed parts of the summary of facts, the victim said in her evidence that at the material time she was staying with the family of her girlfriend at Vaitele-uta. This is the family of the accused whose wife is the aunty of the victim’s girlfriend.

5. Between 31 July and 1 October 2006, whilst everyone of the family was at work except the accused and the victim, the accused approached the victim and asked her to have sex with him. The accused told the victim who was inside another bedroom in the house looking after a baby to leave the baby and come inside his bedroom.

6. The victim then went into the accused’s bedroom and stood next to the bed. At that time the accused was looking outside the house to see if anyone was coming. Seeing that no one was coming, the accused went to his bedroom where he found the victim standing next to the bed.

7. The accused then "pushed" the victim onto the bed. There was dispute whether the accused pushed the victim onto the bed. I accept the evidence of the victim that she was pushed, but in the circumstances I also accept that it was not a strong or powerful push. The victim by going into the accused’s bedroom without being led or forced into it suggests consent or acquiescence on her part to what was to follow. For her to then go and stand next to the bed without being led there whilst the accused was outside the bedroom looking outside of the house to see if anyone was coming, is open to the interpretation that she was aware of what was to follow. It did not require a strong push from the accused to make her get onto the bed. However, it is clear that the accused was the initiator of what happened. The victim did not just go into the accused’s bedroom. It was the accused who told her to go there.

8. Once the victim was on the bed, the accused caressed and sucked her breasts and removed her clothes. He then inserted his penis into her vagina and had sexual intercourse with her. Whilst having sexual intercourse, the accused told the victim not to tell anyone about what they were doing or he will beat her up.

9. On another occasion between 31 July and 1 October 2006 whilst everyone was at work except the accused and the victim, the accused again approached the victim to have sex with him. He removed the victim’s clothes, inserted his penis inside her vagina and had sexual intercourse with her.

The victim

10. As a result of the acts of sexual intercourse between the accused and the victim, the latter has given birth to a child.

11. There is nothing else known about the victim as it has not been possible for the prosecution to provide a victim impact report.

The accused

12. The accused works as a caretaker from which he earns $120 a week. He also earns extra money from doing casual jobs as a swimming pool cleaner and as a handyman.

13. The accused is also not a first offender. He has ten previous convictions. Even though the last previous conviction was in 2001, those previous convictions including the present offending are a reflection of the accused’s attitude towards the law.

Aggravating features

14. Evidently, the accused took advantage of his position as the head of his household to have sexual intercourse with the victim who was staying there as a friend of his wife’s niece. He also threatened the victim during the first incident of sexual intercourse to beat her up if she told anyone. The victim also became pregnant and gave birth to a child as a result of this offending. The age difference of 28 years between the accused and the victim is another aggravating feature. There were also two incidents of sexual intercourse between the accused and the victim.

Mitigating features

15. The accused’s plea of guilty to the charges is a mitigating feature. Even though counsel for the accused said in mitigation that the victim had had sexual intercourse with another male before this incident, I would not treat that one incident of a previous sexual relationship on the part of the victim as a mitigating factor for the accused.

The decision

16. Having regard to the aggravating and mitigating features of the offending, I will take 2 years as the starting point for sentence.

17. Having regard to the mitigating and aggravating features relating to the offender, I will deduct 30% for the guilty plea which is a mitigating feature. That leaves 1 year and 4 months.

18. I will add on 4 months for the aggravating features relating to the offender including the fact that he is a repeat offender. The accused has ten previous convictions for crimes of a different kind from the present offences. They do reflect the accused’s attitude towards the law even if the last conviction was in 2001. That brings the sentence up to one year and eight months.

19. The accused is convicted and sentenced to one year and eight months imprisonment on each of the two charges against him. This is about the same sentence as the one sought by the prosecution in their written submissions. Both sentences to be concurrent.

20. It appears from the Court file that the accused has always been on bail. There is therefore no deduction for the accused being in custody on remand.

CHIEF JUSTICE

Solicitors:
Attorney-General’s Office, Apia, for prosecution
Stevenson Lawyers