Police v Amate [2011] WSSC 148 (29 August 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

MALAKI AMATE
male of Matautu Falelatai and Tafaigata.
Defendant

Counsels: Ms T Toailoa and Ms F E Niumata for prosecution
Defendant unrepresented

Sentence: 29 August 2011

SENTENCE

This defendant is a veteran and classic recidivist offender. He appears for sentence on a number of charges of inter alia sexual assault. Firstly he has pleaded guilty to a charge of attempted rape on the then 12 year old female complainant. In respect of whom there remains in force a suppression order. Attempted rape carries a maximum of 10 years in prison. Secondly the defendant pleaded guilty to carrying out an indecent assault on the same complainant. And the prosecution should note that I have amended the charging section in that charge of section 53(2) from subsection (c) to subsection (a) because that is the correct subsection to be cited in the information S32/11 of indecent assault. Thirdly the defendant has pleaded guilty to inducing the same girl to do an indecent act upon him. Like the indecent assault this too carries a 7 year maximum. Fourthly the defendant has pleaded guilty to being in possession of a dangerous weapon namely a kitchen knife. In respect of the fifth and final charge the defendant disputed that matter and the police have been given leave to withdraw that charge. There was also originally burglary and theft charges against the defendant as well as a charge of escape from custody but prosecution have confirmed those have been dealt with already in the District Court. They are therefore no longer relevant to this matter.

These offences were all committed when the defendant escaped from Tafaigata prison on Tuesday 11 January 2011. The police summary of facts which the defendant accepts says that on Thursday 13 of January in the early hours of the morning the defendant broke into a house wherein the complainant and her cousin were sleeping. The defendant shone a torch into the complainants face which woke her up. He then grabbed her and told her to get up. The complainant was awakened by his actions and she pinched her cousin who was sleeping beside her to wake her up. The complainants cousin woke up and tried to call out to her grandparents in the next room but the defendant told them to be quiet. He had at that time a kitchen knife.

The defendant then ordered the complainant to remove her clothes and he himself removed his own clothes. He got on top of the complainant and tried to have sexual intercourse with her. The summary goes on to state that the complainant struggled and squirmed underneath the defendant and this prevented the defendant from successfully penetrating the girl. The defendant was frustrated by the complainants actions and told the complainant that he would stop if she complied with what he wanted. The defendant then ordered the complainant to perform oral sex on him which she did. No doubt as a result of a belief that was better than what the defendant was trying to do earlier. When the defendant was satisfied he then left the house and the girls reported the matter to their grandparents, who reported it to police.

On Friday the next day 14 January 2011 the defendant was apprehended by the police and returned to prison. There is reference in the police summary of facts to an interview and admission by the defendant in relation to this matter but I have deleted that reference because it is not correct. The defendant refused to make a statement to the police in relation to this matter as confirmed by what is on the court file. There were other parts of the police summary of facts which were objected to by the defendant and which has been deleted by the prosecution.

I have reviewed the defendants case because he has quite a long history. Several very important issues have arisen from this defendants case. He is a career criminal and he began offending in 1994 as a 16 year old. He began with the usual small burglary and thefts which eventually landed him in prison. While he was serving these initial terms of imprisonment there was never as far as I can determine any attempt at rehabilitating the young offender. The result was inevitable. On release in 1995, he reoffended. By that time he would have been 17. He was sent back to prison and in 1996 again reoffended but this time his offence escalated to the crime of robbery which is theft with violence. And he began escaping from prison. His list of previous convictions continued throughout 1997, 1999 and 2000. In that year his criminal career took another leap when he graduated to narcotics offending.

The following year 2001 his offending took a further step this time into the area of violence. He was sent to prison for an assault. The fact that it was a cumulative term of imprisonment indicates it was a serious assault. He accumulated further burglary and theft drunkenness and escape from Tafaigata convictions in the years following.

It is obvious from his record that by this time the defendant had become a hard core criminal. And rehabilitation which may have worked if tried at an early stage was probably by that time a useless exercise. It should come as no surprise that in 2009 he again escaped from prison and this time his criminal offending escalated once again. This time during his escape he committed an attempted rape for which he received a 5 year prison sentence.

His history is well summed up in the probation office pre-sentence report submitted by Mr Aimaasu which states:

"Appearing for sentence is one who can be indentified as a habitual offender after spending most of his adult life behind bars at Tafaigata. Malaki is a well-known offender in all Samoan courts of law after such a long history of offending. He was raised in a low level income earning at Falelatai. His father passed away when he was very young and his mother remarried."

The probation office report shows that he received only very limited education. The report goes on to state that he entered Tafaigata prison when he was a young boy and unfortunately he has grown accustomed to life behind bars. The defendants history is a history of a sad case and a wasted life. It is frightening to contemplate what this defendant will do in respect of future escapes. All the signs are there that the next time he escapes it may lead to the loss of a life of a sexual victim.

There are two things that are clear from this defendants case. The first is it shows the disastrous consequences of a lack of early intervention in his life while he was still young and capable of reform. It reinforces why prison rehabilitation programmes for the young and old alike are essential in any attempt to modernize, reform and run a prison system. Because one day the people that we locked up yesterday will leave that prison. If no attempt is made to change them while they are there then societywill inherit a problem.

The second matter this case highlights is the need to do something about high risk prisoners such as Malaki who keep escaping and committing further and progressively worse criminal offences. He is not the first prisoner who has escaped and terrorized the community. But in his current offending and escape he sexually assaulted a young girl, that now makes two young girls in the space of less than 2 years. Someone must be held accountable for this latest victim and to the parents of this young girl and their families as to why this happened.

The complainants victim impact report relates significant psychological trauma was suffered by the complainant as a result of her experience. Something a 12 year old should not have to undergo. The reports relates how she has had to leave the country and how she feels unsafe even in her own home. How she refuses to sleep on her own and how the mother says she has to keep a constant watch on her. And how she fears men in general as a result of her experience. As well it refers to all the other traumatic consequences this offending has had on her.

This country has signed the United Nations Convention on the Rights of the Child in fact it was one of the first to do so. This court and the Court of Appeal have spoken many times about how more than lip service must be paid to that Convention. For the reason that the Convention guards our children and their future and protects things that are or should be our most treasured possession. Is their security and well-being not worth more that the cost of a new road or a new multi-story building?

It is clear to the court society needs protection from this defendant. No other penalty should be imposed except one of imprisonment suitable to the circumstances. I do however Malaki take in your favour the fact that you have pleaded guilty to these crimes and saved the courts valuable time and resources. And also saved further trauma to the complainant in having to come to court and relive her nightmarish experience.

Maximum penalty for attempted rape which charge I will deal with first is 10 years in prison. Taking into account all factors including those in your favour you are convicted on this charge and sentenced to 8 years in prison. That is to be cumulative to the other terms of imprisonment you are facing.

In respect of the second charge of indecent assault, that is a repetition of the same sort of matters involved in the attempted rape charge, that charge is dismissed.

In respect of the third charge of doing an indecent act that however is a separate offence and carries a 7 years maximum penalty. For that matter you are convicted and sentenced to 4 years in prison. Because that was part and parcel of the same series of offending, that term is concurrent to your attempted rape term of 8 years.

In respect of the fourth charge of armed with a dangerous weapon, the defendant will be convicted and sentenced to 12 months in prison. Again that is a concurrent term.

In respect of the threat to kill charge on police application that matter is withdrawn and dismissed. The defendants time spent in custody awaiting sentence on these matters is to be deducted from these imprisonment terms.

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