Police v D [2008] WSSC 98 (7 November 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

D
Accused

Counsel: L Sua-Mailo for prosecution
S K Ainuu for accused

Sentence: 7 November 2008

SENTENCE BY SAPOLU CJ

The charges

[1] The accused appears for sentence on one charge of rape which carries a maximum penalty of life imprisonment and one charge of incest which carries a maximum penalty of 7 years imprisonment.

[2] Initially the accused pleaded not guilty but much later in time changed his plea to guilty. This happened after the prosecution had withdrawn a number of charges of rape and incest it had filed against the accused. Whether this was the result of deliberate plea bargaining or lack of evidence is not known to the Court.

The offending

[3] The accused is now a 45 year old male. He is from the village of Luatuanuu. He must have been about 40 years old at the time these offences were committed. He is also married with seven children.

[4] The victim, according to the summary of facts confirmed by the accused, is now 15 years old but was 11 years old at the times these offences were committed. She is a natural daughter of the accused and is the third in line of his seven children.

[5] According to the summary of facts, one night in 2003 while the victim’s mother was away, the accused arrived home drunk and approached the victim who was asleep. He told her not to make any noise in case someone wakes up.

[6] The accused then took off his clothes, touched the victim’s vagina, laid on top of her, and inserted his penis inside her vagina. He then proceeded to have sexual intercourse with her without her consent.

[7] The victim cried and told the accused that she could not believe that he could do this to her. She must have been very upset. However, the accused continued on and told her not to tell anyone otherwise he will kill her before he commits suicide.

[8] Then one night in 2004, while the victim’s mother was again away, the accused approached the victim while she was asleep and again had sexual intercourse with her.

[9] It is then mentioned in the summary of facts confirmed by the accused that in October 2007 the victim was discovered to be 5 months pregnant with the accused’s child and the matter was reported to the police. In January 2008, the victim gave birth to that child. This suggests that it was neither the sexual intercourse that occurred in 2003 nor the one in 2004 that resulted in the pregnancy. It also suggests that the accused must have had sexual intercourse with the victim in about April 2007. Perhaps the prosecution should not have withdrawn the charge which alleges that between 31 March 2007 and 1 May 2007 the accused had sexual intercourse with the victim thereby committing the crime of incest.

The accused

[10] As it appears from the pre-sentence report, the accused was the sole breadwinner of his family. Apart from being a carpenter, he is also an electrician and a plumber. He seems to be good at technical, manual work.

[11] However, the accused has a problem. He is an alcoholic. His wife and her family described him to the probation service as a drunkard. The accused also told the probation service that when he committed these offences he was too drunk. The accused was also convicted in 1990 on a charge of drunkenness.

[12] As a result of his present offending, the accused was penalised by the council of his village and he and his family presented 30 boxes of herring, 3 large sows and $500 cash to the village council. In addition, the accused was banished from his village. However, the banishment does not seem to have had any significant impact on the accused because soon after this matter was reported to the police, the accused was remanded in custody. So the law removed the accused from his village.

The victim

[13] Little is known about the victim as her family would not disclose her whereabouts. Perhaps this explains the absence of a victim impact assessment report.

[14] However, it is reasonable to infer from what happened that the victim suffered considerable emotional trauma when she was raped by the accused who is her own father. It is also reasonable to infer from what happened that the victim has suffered great emotional and psychological harm which will endure with her for a long time, most likely for the rest of her life. The accused’s child she has given birth to will remain a constant reminder to her of what her father did to her.

Aggravating features

[15] There are several aggravating features in this case. These are: (a) the abuse of trust and authority involved, (b) the vulnerability of the victim, (c) the age difference of about 30 years between the accused and the victim, (d) the young age of the victim at the times of these offences, (e) the threats made by the accused when he raped the victim, (f) the emotional trauma and distress the victim must have suffered, (g) the fact that the victim became pregnant and has given birth to the accused’s child, and (h) the emotional and psychological harm which the victim must have suffered and will continue to suffer. I also bear in mind that there are two charges, one of rape and one of incest.

Mitigating features

[16] The principal mitigating feature in this case is the accused’s plea of guilty to the charges against him even though it was a delayed one. I will also take into mitigation the fact that the accused has already been penalised by his village.

[17] I will also, for present purposes, consider the accused as a first offender. His previous conviction for drunkenness in 1990 is too old and was for a different type of offence.

The decision

[18] In setting a staring point for sentence, the modern approach is to focus on the actual offence and the involvement of the accused in the offending. This requires taking into account the aggravating and mitigating features of the offending, but leaving out the aggravating and mitigating features related to the accused. See Police v Fiva [2008] WSSC 89; Police v Enelagi [2007] WSSC 95; Police v W [2007] WSSC 92; Police v Faulkner [2007] WSSC 80; Police v Matalavea [2006] WSCA 72.

[19] In this case the aggravating features of the offending I will take into account in setting the starting point is the abuse by the accused of his position of trust and authority as the father of the victim, the threats made by the accused to the victim when he raped her, the emotional trauma and distress suffered by the victim, the age difference of about 30 years between the accused and the victim, the young age of the victim, the fact that the victim became pregnant and gave birth to the accused’s child which will be a constant reminder of what the accused did to her, and the emotional and psychological harm suffered by the victim which is likely to endure with her for a long time and probably for the rest of her life. Applying the totality principle, I would also take into account the fact that after the initial rape, the accused again had sexual intercourse with the victim a year later.

[20] As for any mitigating feature related to the offending, there is none.

[21] In the circumstances, I have decided to fix the starting point for sentence in respect of the rape charge at 14 years. In doing so, it is to be borne in mind that sentencing is not an exact science. It involves the exercise of discretion, weighing and balancing various factors.

[22] As for the mitigating features related to the accused, I will deduct 25% for your delayed plea of guilty. That leaves 10 ½ years. I will deduct 6 months for the penalty you and your family have paid to your village council as well as the fact that you are a first sexual offender. That leaves 10 years.

[23] I make no deduction for the banishment imposed on you by your village council as you were soon thereafter remanded in custody. So the law was going to remove you from your village in any event.

[24] The head sentence which I impose on you for the charge of rape is 10 years imprisonment.

[25] In respect of the charge of incest, you are sentenced to 4 years imprisonment. Both sentences to be concurrent. That means you will serve a total of 10 years imprisonment. The time you have already spent in custody in relation to this matter is to be deducted from that sentence.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia, for prosecution
Meredith & Ainuu Law Firm