Police v Lemusu [2009] WSSC 98 (14 September 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

SINI LEMUSU
@ SINI LIAINA
male of Solosolo
Defendant

Counsels: Mrs L. Su’a-Mailo & Mr F. Lagaaia for the prosecution
Mr Auimatagi Ponifasio for the defendant

Sentence: 14 September 2009

SENTENCE

This defendant appears for sentence on a charge of attempted rape of a 10 year old girl. The facts at trial essentially were that after about 10.30 pm on the night in question, the victim was returning to her family from a house where the village bingo was being held. That house is next door to the defendants house. The defendant had been that evening drinking home brew with his friends and he was in a heavily intoxicated state. As the victim walked past the defendants house, he gabbed her from behind covered her mouth and took her into his house. He put her on the bed with his hand still covering her mouth. The victim was trying to escape from the defendant and she succeeded in biting his hand. This allowed her to call for help and the defendants female cousins who were watching television in a neighboring fale heard these calls. The cousins came to the young girls rescue and prevented the defendant from doing anything further. The cousins advised the defendants family about what had happened and the matter was reported to the police.

After a three day trial the defendant was found guilty of the charge of attempted rape by a panel of assessors hence he now appears today for sentence. The maximum penalty for attempted rape is 10 years imprisonment. The prosecution has correctly cited the sentencing policies of the court in relation to this offence. Because of its prevalence and the need to protect young girls from the lustful attentions of older males, imprisonment is normally imposed and the only question for the sentencing judge is how long considering the circumstances of the offending and the offender.

Prosecution in their sentencing submission have cited a number of previous decisions of the court in relation to this offence. And while the circumstances of those cases may vary and are different the common factor is that in all cases imprisonment was imposed. The seriousness of the charge calls for no other alternative. I consider for the same reasons as pronounced in Police v Iona [2007] WSSC 57 an appropriate starting point for this offending is 6½ years. That start point reflects the aggravating factors of this offending which are in the main the very young age of the girl involved whose name and identifying details have been suppressed by order of this court, the degree of violence used in the abduction of the young girl against her will by the defendant and in his covering her mouth to stop her yelling out for help and the fact that the victim and the defendant are related and he is an older male member of the extended family. It also takes into account the impact offending of this sort has on a girl aged 10 years and the disruptive affect it has had on her schooling and life generally. Indeed one adjournment in this matter was due to the fact that the scheduled hearing date clashed with her school examinations. It also reflects the trauma of the victim having to come to court and relive her experience in front of a room full of strangers. And it also reflects the other factors referred to in the victim impact report filed by the prosecution.

From that start point of 6½ years however must be deducted factors in the defendants favour. Counsel for the defendant has advanced a number of these and has said all that can be said in favour of his client but there is not much in the defendants favour because he is not a first offender. It appears that he has a criminal record which he has admitted to in court and which includes not only offences in Samoa but an offence of a sexual nature in Christchurch, New Zealand. Neither did the defendant plead guilty therefore he does not qualify for a discount for an early guilty plea. According to the latest pre-sentence report from the probation office there has been no reconciliation or apology in this matter which is not surprising given that the defendant still maintains he is innocent of the charge that the assessors found him guilty of.

Defence counsel however has asked that I look at three specific matters. In deference to him I will do so. Firstly, the fact that the defendant has a drinking problem and that his past behaviour and misdeeds are said to be a result of that. That may be true but alcohol is never an excuse for anything and cannot be a mitigating factor in any offence. The defendants solution to that is either to stop drinking or seek help or do both.

The second ground submitted by counsel is the court should look at the violence involved in this offending. He suggests that it was at the lower end of the scale for such offending. I cannot agree with counsels analysis and a comparison of the build of the defendant and the young girl who gave evidence at trial was such that one could see how the young girl was overpowered by him. The evidence heard also makes it plain he used force to cover her mouth and in the taking of the girl from the front of the house and into his house and only when she bit his hand was she then able to call out for help. The degree of force is not insubstantial.

The third factor advanced by counsel is the stigma and isolation suffered by the defendant as a result of this offending. He has been banished from the village and ostracized by his family. This is confirmed in the Probation Office pre-sentence report. While these undoubtedly have occurred these are the consequences of his offending rather than factors that go towards mitigating it. The stigma and social ostracism that the defendant has suffered is something brought on by his own actions but I accept that banishment should be taken as a mitigating factor as it reflects a punishment that has already been imposed on the defendant by the village council.

I also accept counsels submission the offending by the defendant was not pre-meditated because the facts heard at the trial show this to be more a case of the defendant on the spur of the moment deciding to take advantage of the victim who was walking home alone in the dark late at night. There is no evidence that the defendant pre-planned to do what he did and I have no doubt that alcohol played a large part in the defendants decision making that evening. As to the defendants previous character there are also references which I have read and noted from the faifeau and from the pulenuu of his village as attached to the probation office report.

As I said from the 6½ years, factors in your favour must be taken into account and deducted. For banishment and penalties imposed by your village, I deduct a period of 12 months. For the other general factors in your favour referred to by your lawyer and also in the probation office report, I deduct 6 months. That reduces the period from 6½ years to 5 years which is in line with what the prosecution is submitting as an appropriate penalty in this case. If your previous convictions Sini were more recent rather than being 20 odd years old I would upgrade the penalty to cater for that. However I am not inclined to do that given that they date back to 1989, 1984 and 1981 which is over 20 years ago. The period therefore remains unaltered. The defendant is convicted and sentenced to 5 years imprisonment.

JUSTICE NELSON