Police v Livai [2010] WSSC 67 (3 May 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

FAASALA LIVAI
male of Faleula-uta and
AUKUSITINO FAAFUA
male of Faleula-uta and Matatufu.
Defendants

Counsels: Mr G. Patu for the prosecution
Ms L. Tamati for the 1st defendant
Mr D. Clarke for the 2nd defendant

Sentence: 3 May 2010

SENTENCE

After a defended hearing the two defendants were found guilty of raping the complainant. The complainant was then 13 years of age and was attending the Lotto Taumafai School for the handicapped at Motootua to cure a speech impediment and other problems she was suffering from as a consequence of an accident she was involved in when she was about 5 years old. The complainants name and any details that may serve to identify her remain permanently suppressed from publication. The assessors verdict rendered in this matter was unanimous and it is now a question Aukusitino and Faasala for me to pass sentence on you according to the law.

The evidence shows that both defendants are amateur boxers boxing out of the boxing club of their village of Faleula where they live and reside. Obviously from what I have read they are promising young sportsmen and it is tragic to see them involved in something like this. The complainants brother is also a boxer and she testified that she knew the defendants as boxer friends of her brother. Her testimony was both defendants had been to her house on a number of occasions before this incident occurred but she had never talked to them in any great depth or been befriended by them.

She said that on the day of the incident she met the defendants at the Fugalei Market and she asked them if they knew where her brother (not the boxer brother) who is married to a Faleula woman lives. They agreed to take her to her brothers house. So they all went by bus to Faleula and got off at one of the inland roads at Faleula-uta. Evidence then showed the defendants took the complainant down an unsealed plantation road, passing various houses of people living at Faleula-uta. Evidence was given by the occupants of those houses of the party passing their houses going inland. And it appears the defendants took the complainant to a faleo'o situated some distance from the unsealed plantation road. With the consent of all counsels the court and the assessors viewed the unsealed plantation road and faleoo in question. The faleoo was clearly in a deserted part of the inland area and there are not any immediate neighbours or families living close by.

The complainants testimony was in the faleoo, the defendants undressed her and then while Faasala held her down she was raped by first Aukusitino who also gave her love bites to her neck. After that Aukusitino left the faleoo and Faasala had non-consensual intercourse with her. The gist of her evidence was she struggled and fought back but was unable to prevent what happened to her. After the second incident of rape Faasala then left the scene leaving her alone, she dressed and walked to the unsealed plantation road. On the road she met up with a relative of her brothers wife who took her to her brothers house some distance away. The relative was also accompanied by a young lady with a young child in a pram who also was one of the witnesses and who testified at what she saw of the complainants post-rape distressed condition. The complainants sister-in-law notified the complainants mother about what had happened and this matter was eventually referred to the police. The complainant was taken to the hospital the following day and examined by a duly qualified doctor whose report was produced to the court.

On this evidence the prosecution is seeking in their submission an imprisonment term of not less than 16 years for each of the defendants. The maximum penalty for rape at law is of course life imprisonment. The prosecution cites as the first aggravating factor the fact of the complainant unnecessarily having to re-live the ordeal by a trial because the defendants in effect had no credible defence to run. They also referred to the breach of trust involved as the complainant trusted these two boxing friends of her brother to take her to her brother as they had promised. They also referred to the pre-meditated nature of the offence, the loss of the complainants virginity and the age difference between the defendants and the young girl as well as the degree of force involved in the offending, as well the special vulnerability of the complainant and the impact the offending has had on the complainant.

I accept some of these matters but not all of them. As to the defendants unnecessarily defending this matter I do not agree with the prosecution that the defendants had no credible defence. Defence counsels were obviously acting pursuant to instructions from their clients and there were bases upon which to challenge the credibility of the complainants testimony. Such challenge based on for example the medical evidence or even the condition of the actual faleoo where the two rapes are said to have occurred. The assessors verdict means the challenge was unsuccessful and the assessors believed the complainants evidence but that is not to say the challenge should not have been launched in the first place or had no basis for being launched. The defendants not guilty plea does mean the complainant went through the ordeal of a trial, an ordeal which was no doubt unpleasant and which her mother had difficulty with which led to the mother being excluded by the court while the case was in progress.

I accept the prosecutions breach of trust argument because the complainant was entitled to trust these two young friends of her brother and to believe what they told her that they will take her to her other brothers house. I also accept the offending was pre-meditated as the defendants took her to an isolated spot in the plantation. The defendants were found guilty by a panel of assessors of raping the complainant on 21 February 2008 at Faleula-uta in an area with no-one living in the immediate vicinity other than the houses that they passed while travelling inland on an unsealed plantation road.

The loss of the complainants virginity is a matter that is not as clear because the medical evidence was that the doctor could not tell whether the hymen tear was recent or not and the doctor also referred to the fact that this matter when it came to trial was about two years old. But in my experience had the tear or lacerations been fresh, doctors would generally note that on their reports.

As to the age difference that is beyond dispute. She was only 13 years old. The defendants according to the pre-sentence report were both around 20 years of age, Aukusitino was 20 years and 2 months at the date of the offence and Faasala 2 months shy of 20 years of age on the date of the offence. So they are both about 7 years older than the complainant. As to the force used in the offending it seems according to the medical evidence minimal, as there would have been more injuries noted to the complainants body given where the incidents of rape are said to have occurred if excessive force had been used in the commission of these offences. But I accept some force was used by the defendants to overcome the complainants resistance. I also accept that the special vulnerability of the complainant is a significant aggravating factor because of her condition, a condition that the defendants probably were aware of as friends of her brother and which they definitely took advantage of.

Considering all these factors I do not accept the prosecution submission that a 16 year start point is appropriate. I am of the view that an 8 year start point is applicable. As stated by the court in Police v Faasoo [2009] WSSC 11, this case is in a different category to where the rape is carried out by a family member or someone in a special relationship with the victim where generally a higher start point would then be appropriate. This case is also different from Police v Peo [2008] WSSC 107 (rape of another Loto Taumafai student by the bus driver for the School) where a 10 year start point was used because the defendant Peo was in a special relationship to the victim. As the Chief Justice noted in Police v Satoa [2007] WSSC 55, 8 years seems an acceptable start point on a straight forward not guilty plea that goes to trial. In Police v SC [2009] WSSC 77, Vaai J. also used 8 years as a start point and then upgraded it to 10 years because of the special relationship between the defendant and the victim. I have therefore come to the conclusion Aukusitino and Faasala that the 16 years being urged by prosecution is not the appropriate place to start, 8 years is where we should start.

Had you pleaded guilty to this matter a deduction could have been made for your guilty pleas but you elected to take the matter to trial, you therefore are not qualified for that deduction. However a deduction should be made for the fact that both of you are of previous good character and this is your first offence. The court must take into account your ages at the time that this offending was committed because as was noted by the Chief Justice in Police v Pama [2007] WSSC 12, "the youth of the offender and his previous good character are still important mitigating factors when determining the duration of the prison sentence. The court also does not necessarily abandon all hope of rehabilitation when imposing a prison sentence on a young first offender". For these sort of factors I will deduct from your penalty the upper limit of 12 months. That leaves 7 years.

The fact that both of you are prominent and up and coming young boxers has been urged on the court as a mitigating factor, however I must advise you that I cannot take that into account because the seriousness of the charge here requires that special circumstances and characteristics must give way to principles of deterrence and denunciation. The sentence must make it clear to not only defendants themselves but potential offenders that if you engage in this sort of activity you will receive stern treatment from the court. The fact that a defendant may be a promising and up and coming young sportsman is no ground for exceptional treatment and will not save a defendant.

The end result of all this Aukusitino and Faasala is we are left with a penalty of 7 years imprisonment, you are both convicted and ordered to serve 7 years in prison for this offence.

JUSTICE NELSON