Police v Felise [2010] WSSC 127 (19 July 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

TUPE FELISE,
male of
Defendant

Counsels: Ms. F Vaai for Prosecution
Defendant unrepresented

Sentence: 19 July 2010

SENTENCE

After a very short trial in which the defendant represented himself, he was convicted by an unanimous verdict of a panel of assessors of raping the complainant, a girl of their village.

In case a suppression order has not been made there will issue one suppressing the publication of the name or any other details concerning the victim in this matter.

The complainant at the time of this incident was fifteen years of age and lived not far from the defendant. The complainant often went to the tap of her uncle next door to the defendants house to fetch water and given the proximity of the defendants house to the tap it is likely that he had seen her do this before.

On the evening in question the complainant was sent by her mother at approximately 6:30pm to the tap to fetch water. She said the defendant came up to her from behind and grabbed her hand, covered her mouth and pulled her to the back of the tap, undressed her and raped her while standing up. After the incident was finished her aunty who had been looking for her began calling out her name and at that point the defendant ran off. She told the aunty what had happened.

The complainants evidence at trial was that even though it was dark she recognized the defendant and said that he appeared drunk. The defendants own evidence at the trial confirmed that he had been drinking alcohol, again showing this to be yet another offence where alcohol played a part in the offending.

The complainant also said that after the incident had occurred it was reported to the police and she was taken to the hospital and examined by a doctor. The doctor gave evidence at the trial and submitted a report of her examination of the complainant which showed that recent sexual activity had taken place. The doctor’s report noted bruises on the complainants buttocks as well as abrasions in the inner part of her vagina.

The evidence also showed that the next day, one of the complainants relatives went to the defendants house with a sapelu and threatened the defendant and that led the defendant, his brother and sister-in-law going to the complainants house and making an apology to the complainants grandmother.

At the trial, the defendant maintained that he did not do anything to the complainant and that the apology the next day was to keep the peace but not because he was guilty of any sexual misconduct. The assessors obviously disbelieved him and I do too.

It is now a question of what is an appropriate sentencing for the defendants offending. The offence of rape carries a maximum penalty of life imprisonment. This shows the seriousness with which the law regards this kind of offending. In this case it has been very difficult to assess an appropriate start point, not because the facts are difficult but because the prosecution memorandum which in reality is only about one page long does not really assist the court. And because no victim impact report has been supplied from which I can assess the impact of the offending on the young girl. In addition to that, no authorities of any kind have been provided by the prosecution to guide the court and to inform as to penalties in similar cases. It is not good practice for the police to expect the sentencing Judge who has a great deal of other matters requiring his attention to conduct such research. I must express some disappointment at the scarcity of information made available to the court to assist it in its function. I am left with not much except the victims own evidence at trial and a medical report which shows some violence was involved but not comparatively excessive violence as is the case in rape matters coming before the court but which was consistent with what the complainant testified to at trial. The only other document I have is the probation office pre-sentence report which contains the background of this thirty-two year old man who is separated from his wife and daughter.

I must make do with what I have and perusing these documents, it would seem that a 7 year start point is appropriate. It would normally be ten years plus if there were some special relationship between the victim and the defendant but in this case there is no such evidence.

I take 7 years as the start point and deduct from that the factors in the defendants favour. The only factor Tupe that I can see in your favour is that you are a first offender as you have not previously appeared on any matter. For that I make the usual deduction of twelve (12) months thus reducing the period to 6 years. Had you pleaded guilty I could have made a further deduction but you did not, you elected to plead not guilty and you sent this matter to trial. There has been no formal ifoga made so there is no deduction that can be made for that, neither have you expressed any remorse in this matter because when you were given the chance by the court this morning you still say you are not guilty and you did nothing. So you are not entitled to any deduction for remorse.

Accordingly you are convicted and sentenced to 6 years imprisonment for this matter. Your remand in custody time is to be deducted from that sentence.

JUSTICE NELSON