Police v Sione [2011] WSSC 128 (1 November 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

AMOSA SIONE, male of Moamoa, Salepoua'e Saleimoa and Magiagi
Defendant

Presiding Judge: Justice Slicer

Counsel: L Su'a-Mailo and P Valoia for the prosecution
T S Toailoa for the defendant

Hearing: 9 August, 24 October 2011

Sentencing: 1 November 2011

Charge: Rape

SENTENCE

1. Amosa Sione has pleaded guilty to the crime of Rape on a girl aged 6, contrary to the Crimes Ordinance 1961 sections 47, 52. The crime was committed in April 2010.
   
2. He maintained his plea of not guilty until 9 August 2011. He is entitled to the mitigating factor of not requiring the girl to recount her ordeal in Court but not to an early plea. Indeed he did not cooperate with his own counsel who sought to withdraw because of a failure to provide proper instructions. Sione was permitted to confer with Counsel and when he became aware that the trial was to be by Assessors, already selected, decided to change his plea to one of guilty. Mr. Toailoa then agreed to act, on short notice, on the sentencing hearing and is to be commended for doing so.
   
3. The girl was raped near her home. She had been grabbed by the offender and her clothing removed. She was slapped on the face. She was digitally penetrated and then raped. She was prevented from crying out. She was physically harmed by the penetration and fell unconscious during the attack. Amosa Sione left the girl lying on the ground. She experienced pain and discomfort for some time following the event.
   
4. The Victim Impact Report states that the child has suffered ongoing psychological harm. She remains fearful of males and suffers from sleep disturbance. She has become withdrawn and is fearful that others will find out about the sexual attack.
   
5. Amosa Sione was aged 47. He has no previous convictions. He has shown no remorse for his conduct. He has limited education. He had joined a church organisation which catered to persons with special needs and remained a member of that organisation for 5 years. He had shown little interest or concern for members of his extended family. He stated to probation officers that he was intoxicated at the time of the assault.
   
6. The age of the girl and the long term effects on her require a significant penalty.
   
7. I have stated in the concurrent case of Faafouina Filipo reasons for which were delivered on 1 November 2011. In those reasons I set out principles governing and relevant to the complex questions concerning the determination of the 'starting' or commencing sentence, and apply them in this case. There is no need for repetition. In this case the prosecution submits that the starting point be fixed at twenty-five years and an actual term of twenty years be imposed. The prosecution identifies 'the only mitigating factor is the defendant's plea of guilty.' In doing so it relies on the cases of:
   

Pasami: 6 year old victim was raped and indecently assaulted by a man aged 22, with few, if any, mitigating matters. The starting point was 16 years, and allowing for plea and age, an actual sentence of 10 years.

Aleipata: 5 acts of rape on a young girl; commencing point is 25 years, actual imprisonment of 20 years.

Talatina: Rape of a 10 year old by 12 year old by older relative, actual imprisonment 10 years.

Taula: Rape of 11 year old by older male; 10 years starting point, increased to 14 years through aggravation.

Ioane: Rape of 25 year old stranger; aggravating matters, 10 years imprisonment.

8. The prosecution has provided a helpful précis of records kept in relation to cases of rape, some of which were accompanied by acts of indecency. In order to avoid any risk of identification, initials only will be provided. The précis suggests increased prevalence which is a factor relevant to sentencing (Everett v The Queen [1994] TASSC 39; (1994) 72 A. Crim. R 422, (1994) 181 CLR 295). Whether the record shows an increase in criminal acts or reflects a greater willingness by victims or their families to report wrongful conduct is of little consequence since general deterrence is required in either case. Nevertheless Courts ought be careful in equating prevalence with increased prevalence (Smart Tas. unreported 43 of 1995). In Pavlic v R [1995] Tas. R 186, the Court said at 207 - 208:
   

"[p]revalance should be established by reliable data subjected to rigorous analysis. Judges have warned against the misuse of statistical material and, more particularly, of the use of unrefined and unanalysed raw data and relatively short periods of determine statistical trends."

9. The précis records:
   

Offender	Date	Age (Victim/Offender)	Agg. and/or Mit. Factors	Starting Point	Actual Sentence
PK	16/02/07	8 / Unknown			7 years
V	28/02/07	14 / 17 y. old			4 years
K	13/03/07	5 / 15 y. old			4 years
M	30/03/07	19 / step father	- Sexual Intercourse		18 months
T	04/04/07	15 / 49 y. old	- Stepfather - Other Acts - Plea of Guilty	12 years	11 years 6 months
T	04/05/07	15 / 45 y. old			7 years 3 months
S	23/07/07	8 / 41 y. old	- Plea of Guilty	8 years	5 years 1 month
F	26/07/07	14 / 35 y. old	- Niece	7 years	8 years
E	03/03/08		- At Victim's Home		7 years
H	26/03/08	14 / Unknown	- 2 Acts		7 years 6 months
T	21/07/08		- 4 Acts at Secluded Place		8 years
U	21/07/08		- Act of Indecency		8 years
P	16/12/08	-	- Special Needs Student		9 years
F	03/02/09	11 / 23	- Victim Half Sister - 11 Occasions - Threats		15 years
P	23/02/09	15 / Unknown	- Act of Carnal Knowledge		7 and ½ years
U	27/02/09	27 Years Diff.	- Biological Daughter - 2 Occasions - Guilty Plea - First Offender	12 years	10 years
L			- Biological Daughter - 6 Occasions - Threats - Plea of Guilty	20 years	16 years
U	24/03/09		- Other Sexual Offences		11 and ½ years
T	27/04/09	14 / 52	- Niece - 2 Occasions - First Offender - Early Plea	15 years	9 years
T	1/05/09	Significant Age Diff.	- Niece - 6 Acts - Girl Pregnant - First Offender	5 years	4 years 3 months
T	20/05/09	13 / Unknown	- 13 Acts - Biological Daughter - Premeditated - First Offender - Guilty Plea		16 years
C	21/07/09	-	- 2 Acts & Other Sexual Offences		9 years
T	2/11/09	11 / Significant Age Diff.	- Premeditation - Guilty Plea - First Offender	16 years	10 years
M	22/03/09 (See following below).	8 / Unknown	- Cousin - Guilty Plea - First Offender - Committed in company	16 years	10 years
S (See M above).	22/03/10	8 / 17	- Cousin - Guilty Plea - First Offender	4 years	3 years
F	3/05/10	13 / Unknown	- Trust and Vulnerability - Youth		7 years
L (See F above).	3/05/10	13 / Unknown	- Youth - First Offender - Trust and Vulnerability		7 years
F	19/07/10	15 / Unknown	- No remorse - Other Sexual Act - First Offender		6 years
E	4/08/10	6 / 30	- Step Daughter - Other Sexual Act - Threats		12 years
N	3/12/10	14 / 32	- Father of Victim - 3 Acts - Threats and Violence - First Offender	5 years (each crime)	4 years consecutive
S	6/12/10		- Guilty Plea - First Offender	10 years	7 years
T	14/01/11		- Plea of Guilty - First Offender - Victim in No State to Give Consent		6 years
P	7/03/11	12 / 22	- No Relationship - Alcohol - Plea of Guilty - First Offender	16 years	10 years
A	14/03/11	11 / Unknown	- Relationship - Plea of Guilty - First Offender	25 years	20 years
MT	11/04/11		- 2 Victims - Step Daughter and Biological Daughters - 3 Acts - Girl Pregnant		20 years
S		11 and 14 / 32	- Other Acts of Sexual Indecency - Breach of Trust	20 years	12 years 11 months
PM	1/08/11	14 / 55	- Biological Daughter - Premeditated - Committed in Family Home		20 years

10. These examples do not show all of the factors such as breaches of trust, effect on victim and subjective characteristics, nor do they show that in some cases the Court imposed additional sentences which were to be served concurrently with the head or primary sentence imposed. They are used not as a criticism of any of the actual sentences imposed but to illustrate the difficulty in achieving parity and consistency between approximate similar offences made by judicial officers of the Court.
    
11. The Court will attempt to reconcile some of the complexities shown in the above table.
    
12. In R v Millberry [2002] EWCA Crim 2891; [2003] 1 WLR 546 (discussed in the concurrent judgment of Faafouina Filipo) the English Court of Appeal provided as a guideline the commencing point of an eight year term of imprisonment. In R v Edwards 1994 12 CRNZ 302, a four year sentence of imprisonment was imposed for the rape of a girl aged five, and in R v Criminal Appeal CR 128 sentencing judgment, a sentence of eleven years imprisonment was upheld by the Court of Appeal for the rape of a stepdaughter aged six years. In that case, the Court considered comparable cases and determined that '11 years imprisonment was at the end of the range available in such cases.' However, at that time the maximum term of imprisonment was that of fourteen years. Following R v A [1994] 2 NZLR 129, which dealt with a case where the maximum term of imprisonment had been increased to twenty years, one would expect a higher commencing point for sentence.
    
13. In R v AM [2010] 114, the New Zealand Court of Appeal provided details guidance to Courts dealing with sexual cases. The judgment commenced with the observation:
    

"For much of the last decade of the 20th century and for the first decade of the 21st century sentencing for sexual violation by way of rape was based on the guidance given by the Court of Appeal in R v A [1994] 2 NZLR 129 (CA) [SEX-1.1 001]. R v A was said in R v AM [2010] NZCA 114 [SEX-1.1 002] to have been overtaken by emerging evidence about, and evolving social attitudes to, rape and thus to give little assistance in sentencing for the most serious cases. The guidance was also out of step with the structured approach to sentencing in R v Taueki (see para I.4.2). There was no guideline judgment for sexual violation by unlawful sexual connection.

...

[2] We are satisfied that the time has now come for this Court to give integrated sentencing guidance for offending involving sexual violation and, as part of this exercise, to review and update the R v A approach in relation to rape. We have chosen to do so in the context of the present appeal which demonstrates some of the difficulties which have developed with sentencing in this area."

14. In relation to the crime of rape it identified '4 bands' namely:
    

Rape Band 1 6 – 8 years

Rape Band 2 7 – 13 years

Rape Band 3 12 – 18 years

Rape Band 4 16 – 20 years

15. The Court was dealing with an offender who had raped and sexually molested his young granddaughters over several years, commencing while he was aged in his forties. It explained its methodology stating at para. 14 – 15:
    

"[14] Current sentencing practice is based around a methodology which was first explicitly and authoritatively explained in Taueki. Under Taueki, the sentencing judge's first step is to identify a starting point sentence which appropriately reflects the intrinsic seriousness of the offending. This 'starting point' sentence is, at the next step, adjusted up or down to reflect circumstances which are personal to the offender (including a plea of guilty if there has been one). More recently there has been something of a development of the Taueki methodology in cases where there have been guilty pleas or assistance to the authorities. It is now seen as best practice to arrive at a provisional sentence which reflects all factors other than the guilty plea and/or assistance to the authorities, and then, in a third step, discount that provisional sentence to allow for those factors. All of this is explained in Hessell [At [14] and [22] – [23]]. For ease of reference (rather than strict accuracy) we will treat this as encompassed by the phrase 'Taueki methodology'. This methodology has been developed in respect of sentences of imprisonment and is only of assistance in determining how long such sentences should be (including notional sentences when home detention is in issue)."

16. It detailed culpability factors as including:
    
    • - planning and premeditation;
    • - violence and detention;
    • - vulnerability of victim;
    • - harm to the victim;
    • - multiple offenders;
    • - scale of offending;
    • - breach of trust;
    • - hate crime; and
    • - degree of violation
      

and dealt with other matters such as mistaken but unreasonable beliefs that there had been consent, former relationships and withdrawn consent.

17. The Court then proceeded to analyse the factors which determined the appropriate band stating at:
    

"[79] In considering the culpability of offending in a particular case, we emphasise that what is required is an evaluative exercise of judgment. We see judges as having a reasonable degree of latitude in this exercise. Sentencing judges will have a range of information before them and, after trial, will have more information than can be gleaned from the record. In assessing the gravity of offending judges must, of course, do this in a fact-specific way focusing on the culpability of the offender and the effect on the victim and as a corollary, they must not reason by stereotype or seek to turn responsibility for the offending back on the victim, in terms of 'she asked for it' or other excuses based on rape myths [See, for example, PS Rumney "Progress at a Price: The Construction of Non-Stranger Rape in the Millberry Sentencing Guidelines" (2003) 66 MLR 870 at 873 – 876 and 883 – 884; H Clark "Judging Rape: Public Attitudes and Sentencing" (ACSSA Newsletter 14 June 2007) at 20; and Mel Smith and Warren Young Rape Study (Department of Justice, Wellington, 1983) Volume 1 at 7 – 8].

[80] These guidelines are to be applied in the same way regardless of the gender of the offender or of the victim. That reflects the gender-neutral definition of 'sexual connection' [R v L [2006] 3 NZLR 291 (CA) at [36] and [39]; R v Herbert CA70/98, 21 May 1998; R v A [2002] NZCA 394; [2003] 1 NZLR 1 (CA)].

[81] Because of the evaluative nature of the sentencing process, we have tried to maintain a degree of flexibility and as in Taueki, [at [35](b)] we have provided for some overlap in the margins of the bands.

[82] In terms of the very top of the highest band for the rape guidelines, we have taken the same approach as in Taueki in that this band goes to the maximum term. In this respect, we are taking a different approach than that of the Crown and from Ms Aikman both of whom submitted that the top of the highest band should fall a little below the 20-year maximum. They saw taking a slightly lower end point as emphasizing the ability to depart from the bands in extreme cases and to acknowledge the nature of the maximum sentence available whilst still reflecting the availability of that penalty to the sentencing judge. We agree that, from a practical perspective, it is more difficult to achieve consistency if the bands are very wide. However, there will be cases where the offending is within the most serious of cases or close to the most serious, in which case, in terms of s8(c) and (d) of the Sentencing Act, the maximum term or a term near to the maximum should be imposed.

[83] There will also be cases which are so unusual that they will require starting point outside of the guideline (ie, below the bottom of the band one). Where a judge departs from the guidelines, reasons should be given for the departure.

[84] The proposed bands set out ranges of starting points, not final sentences. In the usual way, that starting point will be adjusted up or down to reflect circumstances personal to the offender. It is at this stage that mitigating factors such as youth, mental disability, and earlier good character will be taken into account. It is important that judges do not diminish this aspect of sentencing. Sentences should reflect personal factors. The point of the guidelines is not to impose a straitjacket on sentencing judges – quite the reverse. As explained in Hessell¸[At [14]] the deduction for a guilty plea should be made as the final step in the sentencing process after the otherwise appropriate sentence has been determined, ie, after other mitigating factors have been taken into account."

18. For the purpose of this sentence, I will regard the case as coming within the 'higher end of Band 3'. The victim was aged six. She had been abducted and suffered indignity and physical harm. She had been left at the institution where the offender resided, which could suggest a degree of trust. In some respects the circumstances were similar to the case of R v Roberts [1990] NZCA 192; 1990 6 CRNZ 370, one used by the Court as comprising circumstances which provided an example of a case coming within Band 3.
    
19. The fact that it was opportunistic, not prolonged, and did not involve a close member of family or a person in a position of trust, such as a school teacher, and there was only one act.
    
20. In P v F (unreported, 16 April 2010), this Court sentenced a man aged 24 to a sentence of four years for acts of indecency on a girl aged five years. That sentence was at the higher end of the range, in comparison to the permitted maximum sentence, for a single event, because of the age of the girl. The same course will be taken here. The age of the victim and her vulnerability warrant this case as coming within the higher end of Band 3.
    
21. Any argument that a rape is less serious where the victim does not realise the sexual significance of the act of penetration has long been rejected (Austin v. R [1971] TASStRp 20; 1971 Tas. S. R. 227; a case which involved a child aged five-years).
    
22. The commencing point is a sentence of 18 years.
    
23. The offender is entitled to the benefit of his plea of guilty thus avoiding the need for the child to recount her ordeal. He has limited capacity and education. He has lived in an institution for some five years which suggests (but is not conclusive) some degree of intellectual impairment. The act was opportunistic. The Court accepts that alcohol played a part in his conduct, which although it does not justify or excuse his conduct, does support the claim that the conduct was opportunistic rather than premeditated. He has no relevant prior convictions. He has served but two weeks in custody.
    
24. Allowance is given for his plea and limited capacity. The appropriate sentence is that of fifteen (15) years imprisonment.
    

CAVEAT

25. There remains one outstanding question namely, whether the Samoan Courts, in applying AM (supra), will also apply the quantum of sentence or sentencing ranges stated in AM. That decision ought not be made by a single Judge and can only be properly determined by either the Court of Appeal or a traditional process of the synthesis of a number of judgments by single Judges over a period of time. Those are the historic methods used by the Common Law. This judgment ought not be seen as usurping either those methods or judicial models, but remain for the Court as a whole. The Samoan jurisdiction might choose to use different ranges or 'bands' in the application of the general principles stated in AM. Here I have chosen a commencing point of eighteen years. Over time it may be that the commencing point or bands will alter to reflect other matters but this Court of a single Judge ought not presume to set those commencing points or limitations.
    
26. Central to the principles of sentencing are those of general consistency and specific matters of parity or disparity as between offenders. General consistency is the responsibility of the Court as a whole both at first instances and through appellate review. As Mason J. said in Lowe [1984] HCA 46; (1984) 154 CLR 606 at 610:
    

"Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community."

ORDERS

(1) Amosa Sione be convicted of the crime of Rape.

(2) Amosa Sione be sentenced to a term of imprisonment for a period of fifteen (15) years to commence as and from 9 August 2011.

(3) The name of the victim, her family and village are suppressed.

(JUSTICE SLICER)