Police v D [2009] WSSC 3 (3 February 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

D
Accused

Counsel: T Faumuina-Tuuga for prosecution
Accused in person

Sentence: 3 February 2009

SENTENCE

The charges

1. The accused appears for sentence on eleven charges of rape each of which carries the maximum penalty of life imprisonment.

2. When the first charge for rape was called on 28 April 2008, the accused entered a not guilty plea. When the prosecution laid ten more charges of rape in May 2008, the accused pleaded not guilty to those charges but vacated his not guilty plea to the first charge and substituted it with a guilty plea.

3. The charges to which the accused had pleaded not guilty were then adjourned for hearing to 15 December 2008. On the date of trial, the accused decided to vacate his not guilty plea to the ten charges to which he had pleaded not guilty and to substitute it with a guilty plea. So this is quite a delayed guilty plea.

The offending

4. The accused is a 23 old male from the village of Lepea. He is single and unemployed. The victim is an eleven year old female who at all material times was attending school.

5. The accused and the victim have the same mother but different fathers. So they are half-brother and half-sister. At all material times they were living together with their mother.

6. All the present offences were committed over a period of 13 months between the month of February 2007 and the month of February 2008 at times the mother of the accused and the victim was away from home for work.

7. In February 2007, when the accused first raped the victim, the latter was picking up the rubbish at their family’s yard when the accused called out to her. When she did not answer, the accused went over and grabbed her and took her inside their house. Inside the house, the accused took the victim inside a bedroom, drew the curtains, removed the victim’s clothes and laid her on the bed. The accused then removed his clothes.

8. When the victim grabbed at her clothes in order to leave the room, the accused pinned her down. The accused then began to suck on the victim’s vagina before forcibly inserting his penis into her vagina and proceeded to have sexual intercourse with her. In the victim impact report, the victim says that the accused threatened to beat her up if she were to tell anyone about what he did to her.

9. For almost every month for the next twelve months, the accused continued to commit rape upon the victim.

The victim impact report

10. It is clear from the victim impact report that the victim was a virgin at the time she was first raped by the accused.

11. It is also clear from the victim impact report that the victim has suffered psychological hurt and harm as a result of these offences. She also feels saddened and embarrassed that her school mates and members of her village have come to know about these incidents.

12. A further consequence of these incidents is that the victim is no longer attending school.

The accused

13. As it appears from the pre-sentence report, the accused who has never got to know his father has had an unstable life. He changed his place of residence three or four times. He also changed schools once.

The accused has also been involved in incidents of alcohol abuse. In relation to the first incident of rape, he told the probation service that he had been drinking all night until late the following morning. It also appears from the pre-sentence report that sometimes the accused watched on his DVD player pornographic movies lent to him by his friends.

15. The accused is also a first offender and has expressed remorse to the Court and the probation service.

Mitigating factors

16. The factors that I consider to be mitigating in this case are the accused’s plea guilty to the charges against him and the fact that he is a first offender.

Aggravating factors

17. There are several very serious aggravating factors in this case. The first is that the accused and the victim are brother and sister and the serious breach by the accused of the element of trust involved in such a relationship. The second is the fact that there are eleven separate incidents of rape committed by the accused upon the victim over a period of thirteen months. And the third factor is the psychological harm done to the victim.

18. The age difference of 12 years between the accused and the victim and the threat by the accused to beat up the victim if she told anyone about what he had to her on the fist occasion that he raped the victim are also aggravating factors.

The decision

19. As this is a case which involves eleven charges of rape, over an extended period of time, it is appropriate to apply the totality principle for sentencing to it. Given the gravity of the offending and the involvement of the accused in it, I will take 18 years as the starting point for sentence. I will deduct 2½ years for the delayed guilty pleas. That leaves 15 ½ years. I will deduct another 6 months for the fact that the accused is a first offender. That leaves 15 years. Perhaps, I should note here that this is the first case to come before this Court where a brother has raped his own sister. I hope the sentence imposed in this case will convey the strong denunciation and condemnation by our society of such intolerable conduct.

20. The accused is sentenced to 15 years imprisonment on each of the eleven charges of rape. All sentences to be concurrent. The time that the accused spent in custody for this case is to be further deducted from that sentence.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia, for prosecution