Police v Ah Man [2011] WSSC 116 (12 September 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

IOANE AH MAN male of Mulivai Safata and Siumu i Sasa'e.
Defendant

Counsels: Ms FE Niumata for prosecution
Defendant unrepresented

Sentence: 12 September 2011

SENTENCE

This defendant appears for sentence on a charge of rape. The complainant in this matter is a 25 year old, single female, expatriate volunteer worker, working in Samoa for the better development of this country and its people. What happened in this case is a tragedy not only for her personally but for our community. Her victim impact report filed by the Attorney Generals office indicates that the incident quite understandably has had a serious impact on her and her previous view of Samoa and its people. In particular the men of this country. The complainant can be assured that the actions of this defendant is certainly not representative of the behaviour of the men of this community.

There will issue a suppression order in respect of the complainants details and that order is to extend to the place of commission of this offence. And extends to the nature of the complainants employment in Samoa and her employer. She should only be referred to please ladies and gentlemen of the press as a 25 year old, single, expatriate worker.

The summary of facts which the defendant admits relates that he is a 24 year old male, married with two young children and he is employed at one of the local beach resorts. This offence occurred on a Sunday around 12:00 noon on that day. The complainant was snorkeling in the sea a short distance from the local beach resort where the defendant was employed. Unfortunately the complainant was in a secluded area of the beach and there was no one else around. She saw the defendant standing on the beach and the defendant greeted her and went into the sea and struck up a conversation with her. The defendant obtained from her information about her personal details and what she was doing in the country and then invited her to view the area of the beach which had been affected by the 2009 tsunami.

The two of them went into an area inland where the tsunami had damaged various buildings. But the complainant began to feel uncomfortable because she noticed the defendant was leading her further and further inland. The summary states that the complainant eventually stopped and told the defendant she wanted to return to the units closer to the beach and as she turned around to do so, the defendant tackled her from behind. The defendant restrained her and the complainant began to cry and asked him to stop. The summary states that he forcefully removed her clothing and attempted to perform oral sex on her. The complainant however struggled and resisted and pushed him away. Whereupon the defendant became angry and grabbed the complainant by the throat, tried to strangle her and threatened her, saying that he would kill her. The complainant became fearful of what the defendant would do if she antagonized him or resisted further, so she refrained from further physical resistance and the defendant proceeded to sexually assault her by having sexual intercourse with her. This continued until the defendant was satisfied at which point he then led the complainant by the hand back to the vicinity of the beach resort. As they got close they came across a group of young women to whom the complainant cried out for help causing the defendant to run away.

Quick police action resulted in the defendant being identified and the following Monday he was apprehended and interviewed by the police. Wherein he admitted having forceful sexual intercourse with the complainant on the Sunday in question. Leading to the defendants appearance for sentence today on a charge of rape.

There is no doubting the seriousness of the crime in this matter and its consequences. The defendant in his plea in mitigation sought leniency and mercy from the court and referred to his wife and children. It is a great pity that the defendant did not think of them before raping a young defenseless palagi woman, out for a leisurely Sunday afternoon swim at a nearby beach resort. Behaviour which has damaged the psyche of this young woman probably irreparably and no doubt has tarnished the reputation of this country which is trying to attract visitors to its beaches and workers to come and help in its development.

There is little in the defendants favour except his guilty plea and his first offender status. Because according to the probation report the defendant has not even tried to render an apology to the complainant. Maximum penalty for rape is life imprisonment. That should tell the defendant and everyone else how serious the crime of rape is regarded by this country. In respect of sentence I adopt the words of my brother Vaai J in Police v Pauesi [2008] WSSC 23 also a case involving rape of an expatriate female worker. Where he said:

"There should be an element of deterrence to reflect the gravity of the offence to punish the offender, to deter the offender and to deter other like-minded people. Sentences also to covey condemnation by society of such criminal conduct."

As he observed there is only one sentence open to the court and that is a custodial sentence. I agree with him completely. And the offending in this case is aggravated by the fact that this offence was pre-planned by the defendant in engaging and luring the unsuspecting complainant to a deserted bush area. And in taking advantage of the girls vulnerability as she was out swimming alone.

The prosecution have also correctly identified the use of violence and threats to give effect to the offending as a further aggravating circumstance. And identified the impact of the offending not only on the complainant personally but because she was a foreigner working in this country, on the reputation of this country.

Considering all the circumstances Ioane a 15 year start point for sentence is appropriate. However you are entitled to certain deductions by law because of your guilty plea which has saved the courts time and also saved the necessity for the complainant to come to court and relive this experience. It is also in your favour Ioane that you are a first offender, you have a clean record. Probation office report also records and the court takes into account the fact that your village council has imposed a fine on you which has been paid together with a traditional apology to the village. If there had been a further apology by either you or the village to the complainant I would have also given you credit for that. But there is nothing in the report to indicate that was done. For all those matters Ioane I deduct 5 years from the 15 years start point for sentence leaving a balance of 10 years.

For this matter you will be convicted and sentenced to 10 years in prison.

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