Police v Fa'aso'o [2009] WSSC 11 (23 February 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

SANELE PETELO FA’ASO’O male of Tuanaimato.
Accused

Counsel: L S Petaia and G Patu for prosecution
U L Va’a-Tamati for accused

Sentence: 23 February 2009

SENTENCE BY SAPOLU CJ

The charges

1. The accused was charged by the police with one count of rape and one count of having sexual intercourse with a girl between the age of 12 and 16 years. When the charges were first called for mention, the accused pleaded guilty to both charges. He was not represented by counsel at that time. The matter was then adjourned for a summary of facts from the prosecution, a pre-sentence report from the probation service, submissions by the prosecution, a plea in mitigation by the accused, and sentencing.

2. However, before sentencing, the accused engaged counsel. An application was then filed by the accused’s counsel for the accused’s plea of guilty to the rape charge to be withdrawn and to be substituted with a not guilty plea. There was no application to withdraw the plea of guilty to the charge of having sexual intercourse with a girl between the age of 12 and 16 years.

3. The accused’s application to withdraw his plea of guilty to the rape charge was granted and it was substituted with a not guilty plea. The case was then adjourned for hearing. The charge of having sexual intercourse with a girl between the age of 12 and 16 years was also adjourned to await the outcome of the rape charge.

4. After a two day trial, a panel of assessors unanimously found the accused guilty of rape on 23 December 2008. However, I would like to acknowledge that the accused was very ably defended by his counsel. The accused is now appearing for sentence on both charges with which he was being charged the police.

The offending

5. According to the evidence given by the complained at the trial, on Monday, 5 March in the afternoon, she returned home with her younger brother after school. When they arrived home there was no one at home as their mother had gone somewhere. At that time, the complainant was 15 years old.

6. The complainant’s brother then left to bathe in a river leaving the complainant by herself at home. Not long afterwards, the complainant heard from the room she was in someone calling name of her mother. She called out that her mother was not at home. She also came out of the room she was in.

7. At that time, the accused entered the house, closed the door behind him and pulled the complainant inside the room she was in. When she told the accused to get out of the house he replied to shut up otherwise he would assault her. The accused then removed the complainant’s clothes telling her if she screamed or called out he would assault her. The complainant said she was afraid. She then went and sat at her family’s dining table.

8. However, the accused came and pulled her to a room at the back. She refused but the accused still pulled her saying that if she screamed he would assault her. The accused managed to pull the complainant into the room where he laid her down. She struggled but the accused was too strong for her.

9. The accused then removed his own clothes and had sexual intercourse with the complainant.

10. Under cross-examination, the complainant denied that she consented or invited the accused to come to her family’s home. She also denied that she was in a boyfriend-girlfriend relationship with the accused.

11. According to the accused when he gave evidence, he and the complainant had a boyfriend-girlfriend relationships and this was the third time he had sexual intercourse with the complainant. He also testified that the complainant consented.

12. The assessors by their unanimous verdict of guilty of rape must have accepted the evidence of the complainant and disbelieved the evidence of the accused.

The victim impact report

13. According to the victim impact report, the victim feels ashamed of herself because everyone in the area where she lives now knows about what happened to her. Some of the youths in the area where she lives also make fun of her because of what happened to her.

14. The family of the complainant and the family of the accused also live in the same neighbourhood. The complainant says that every time she sees the accused brings her painful memories of what the accused did to her.

The victim

15. As already mentioned, the victim was 15 years old at the time of this offending and attending school. She has been psychologically affected by what the accused did to her.

The accused

16. The accused was 22 years old at the time of this offending. He is single. He has had two jobs. He lost his first job due to this offence. His second employer reports that the accused is a trustworthy and hardworking employee. His mother also told the probation service that the accused is an obedient and respectful son. So it would appear that the accused, who is a first offender, was a person of good character prior to the commission of the present offence.

17. However, it also appears from the pre-sentence report that the accused still maintains his innocence of the charge of rape. Even though his mother has apologised to the complainant’s mother, the accused has not, himself, apologised to the complainant or her family. This is not a sign of remorse.

Aggravating features

18. The aggravating features of this case are (a) the threats of assault by the accused which accompanied the rape, (b) this rape involved home invasion, (c) the emotional trauma and stress that must have been suffered by the complainant, and (d) the psychological effects of the offending upon the complainant.

Mitigating feature

19. The only mitigating feature of this case is the fact that the accused is a first offender and he was a person of good character prior to the commission of this offence.

20. I will not consider the accused’s plea of guilty to the charge of having sexual intercourse with a girl between 12 and 16 as a mitigating feature. The main charge against the accused is rape to which he pleaded not guilty.

The decision

21. In setting a starting point for sentence, the modern approach which this Court has adopted following the New Zealand cases of R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 and R v Davis [2005] NZCA 246 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: Police v D [2008] WSSC 98; 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. The sentence to be passed on the basis of the starting point which has been determined is adjusted up or down taking into account the aggravating and mitigating features related to the accused.

22. In this case, the aggravating features already mentioned are all relevant to determining the starting point for sentence. There is no mitigating feature of the offending. I will, therefore, set the starting point at 8 years. In doing so, I consider this case to be in a different category from cases of rape which involve a breach of the victim’s trust by, for example, a father, a step-father, a brother, or a school teacher, where the starting point for sentence is generally higher then 8 years.

23. I will deduct 6 months for the fact that the accused is a first offender and was a person of good character prior to the commission of this offence. That leaves 7½ years.

24. The accused is sentenced to 7½ years imprisonment on the charge of rape. On the charge of having sexual intercourse with a girl between the age of 12 and 16 years he is sentenced to 3 years imprisonment. Both sentences to be concurrent. This means the accused will serve a sentence of 7 ½ years imprisonment. The time the accused has already spent in custody is to be further deducted from that sentence.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia, for prosecution
Tamati Law Firm for accused