Police v Talataina [2009] WSSC 114 (26 October 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

SIO TALATAINA
@ SIAKI SATANO, male of Vaitele-uta.
Defendant

Counsels: Ms L. Su’a-Mailo and Mr M. Lemisio for the prosecution
Mr A. Roma for the defendant

Sentence: 26 October 2009

SENTENCE

This defendant appears for sentence on a charge that at Vaitele-uta on the 27 August 2007, he did rape the complainant who at the time was 11 years of age. If one has not been issued, there will be a suppression order in respect of the name of the complainant and any other details that may identify her.

The defendant is a single 35 year old male of Vaitele-uta and at the time of the offending he lived with his sister and was neighbors with the complainant. The morning of Monday 27 August 2007 was during the school holidays and the complainant was at home. She was alone with her younger brother and an elderly grandmother in the family home. At one stage in the morning the younger brother went to the shop on an errand and the complainant who had a stomach ache went to the family toilet at the rear of the main building. The toilet is visible from the defendants property. The complainant was surprised when the defendant opened the toilet door and came inside and locked it behind him. She pulled up her shorts and tried to stand up but he pushed her down and covered her mouth with his hand. He then pulled her pants down, took off his clothes and digitally penetrated her vagina with his finger. She said he then spat into his hand and tried to insert his penis into her vagina. He could not so he prised her legs apart and tried again and this time was successful. He had sex with the complainant until he was satisfied. The complainant said this was a painful experience for her as she was a virgin and that all the while he was covering her mouth to prevent her from crying out for assistance. After the intercourse occurred he tried to kiss her but she refused. He then told her to go and have a shower and gave her $4 and instructed her not to tell anyone. The defendant opened the toilet door and the complainants younger brother was standing there and questioned him as to what he had been doing. He told him to get some money from the complainant and the defendant left the property. The defendant has accordingly pleaded guilty to a charge of raping the complainant on the 27 August 2007 at Vaitele-uta. The maximum penalty for rape is life imprisonment.

As counsel for the defendant has properly conceded in his submissions the usual penalty for rape is imprisonment and the seriousness of the offending in this case warrants that penalty. It is really only a question for me to determine what period is appropriate to fit the circumstances of the offending and the circumstances of the offender. The reason for an imprisonment penalty is of course because of the prevalence of this sort of offending and to signal the unacceptability to society of such behaviour. It is also aimed at deterring the defendant from future such offending and others who may be tempted to follow his example. The penalty must also be a suitable punishment for the crime.

The aggravating factors of the present case are summarized in the prosecutions submission namely the connection between the defendant and the complainant who were neighbours, there has been a breach of trust of sorts because neighbours are supposed to watch out for each other. The watching done by the defendant was of an entirely different kind. There is also the premeditation involved because the defendant obviously knew the complainants circumstances and that she was at home for the holidays with no adult present able to interfere with what he had in mind. It appeared that the defendant often goes over to the property of the complainant to borrow their lou and for other matters. There is also the aspect of invasion of the sanctity of the complainants home in the commission of this offence. Plus there is the significant age difference of 22 years between the parties and the very tender age of the complainant. There is also the loss of the complainants virginity which is the loss of a prized possession of a young girl as well as the use of force to overcome her and to cover her mouth preventing her from crying for help. The court must also have regard to the effect all this has had on the complainant as outlined in the victim impact report. The psychological damage to an 11 year old girl cannot be underestimated.

It also appears from the victim impact report that this matter has a history in that the defendant had tried to sexually molest the complainant before but failed and only succeeded on 27 August 2007. But this significant fact was not included in the prosecution summary of facts so I cannot take it into consideration as being established or consented to even though it is highly relevant to sentencing. Because there is a difference between a one off offending and a case where there is possible stalking by a defendant of the victim.

As stated before the maximum penalty for the offence of rape is life imprisonment. However considering all the relevant factors the appropriate starting point for sentence should be 16 years in prison. I would normally deduct firstly from that a one third period or 5 plus years for your guilty plea defendant because your guilty plea saved the courts time and resources and more importantly avoided the necessity of the complainant testifying and reliving her ordeal. But here the defendant queried parts of the summary of facts which necessitated the complainant being called and I therefore propose to allow a deduction but it will be less than what is normally made for a guilty plea. It will be seen from my conclusions of fact above that I accept what the complainant said in her testimony about those parts disputed by the defendant. Therefore for the guilty plea I only deduct one quarter of the penalty namely 4 years which leaves a balance of 12 years.

Your lawyer has also correctly highlighted other mitigating factors in your favour for which the following deductions will now be made. Firstly, even though you have a narcotics offending in your history you should be treated as a first offender because the offence you are appearing for sentence today is an offence of a different kind namely a sexual offence. For your first offence status I therefore deduct the period of 12 months leaving a balance of 11 years. For your apology to the complainant and her family which has been accepted as confirmed by the probation pre-sentence report and all other factors referred to by your lawyer and the probation office in your favour, I will make a general further deduction of 12 months leaving a 10 year balance.

For the rape of this 11 year old complainant you will be convicted and sentenced to 10 years imprisonment. It is further ordered that the period the defendant has spent in custody awaiting sentence is to be deducted from that period.

JUSTICE NELSON