Police v Siaki [2010] WSSC 174 (6 December 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

IOANE FIA SIAKI
male Lotoso'a Saleimoa.
Defendant

Counsels: R Titi for prosecution
M V Peteru for defendant

Sentence: 06 December 2010

SENTENCE

This defendant appears for sentence on a charge of rape which carries a maximum penalty of life imprisonment. The defendant is 32 years of age married with three children and is a planter supporter of a young family. The complainant in this matter was 23 years old at the time of the incident and the probation report and the summary of facts says that she is the defendants first cousin. She is a special needs person with mental disabilities and at one time attended the Fiamalamalama School here in Apia. But she is capable of doing household chores such as cleaning and washing which is what she was primarily responsible for in her family when this incident occurred.

At the time of the incident the defendant was living at the complainants family but it is not clear how long he had been there. The summary of facts relates that on 11 October 2009 the complainant was ordered by her mother to clean up the family main house which is located at the front of the family property. The complainant did so and while she was in the main house the defendant approached her and ordered her to go inside one of the house bedrooms. Inside the room he removed her clothes and ordered her to perform fellatio on him. After she did this the defendant pushed her onto the bed put his private part into hers and had sexual intercourse with her. Summary of facts relates that during the intercourse the complainant cried and asked him to stop. In her victim impact report she said that she did this because she felt pain in her vagina. After the intercourse was completed the defendant removed himself from the complainant and told her not to tell anyone about what had happened. The defendant then threw away the victims clothes and left the bedroom.

The girl realised that she was bleeding from her vagina and she put on a "suluaoao" lavalava and walked to their house at the back of the family property. Her mother saw her and questioned her as to what had happened and where were her clothes. The summary relates that she told her mother that the defendant had jumped on her and that her vagina hurt. The mother approached the defendant and questioned him but he denied all allegations of sexual misconduct with the complainant. The matter was however subsequently reported to the police and the defendant was charged with rape to which charge he initially pleaded not guilty. But when the matter was called for trial the defendant withdrew his not guilty plea and substituted it with a guilty plea.

Sad to say there have been a number of cases before this court of sexual assault on young women who have special needs. In Police v Livai [2010] WSSC 67 where the court noted that the special vulnerability of a complainant like this is a significant aggravating factor, penalty imposed in that case was 7 years imprisonment. And the case of Police v Peo [2008] WSSC 107 where the penalty imposed was 9 years imprisonment.

In considering an appropriate start point for this matter I propose to follow that used in Peo by the Honourable Chief Justice because that is a case similar to this with similar aggravating factors of breach by the defendant of his cousins trust and the age difference between the parties of almost 10 years. Quite apart from that there is also the factor of the duty of a young male of a Samoan family in respect of younger female siblings. I adopt a start point therefore of 10 years in prison. From that the defendant is entitle to certain deductions at law which I will now make. Firstly for the defendants guilty plea which although entered late did result in the complainant not having to face the ordeal of a trial and did result in saving the courts time and resources. To that extent Ioane I agree with your counsel that some credit should be given to you for those matters and for that I deduct 20% of your sentence a period of 2 years leaving a balance of 8 years. I also agree with your counsel that the penalty should reflect the fact that you are a first offender and that this is out of character offending in that you gave into temptation. The penalty should also reflect to some extent the settlement that has been achieved as per our normal custom for this matter. For all those factors I deduct a period of 12 months or one year, that leaves a balance of 7 years. There are no other factors that have been placed before the court requiring deduction and I can see no other factor requiring deduction. Accordingly Ioane will be convicted and sentenced to 7 years imprisonment for this rape.

............................
JUSTICE NELSON