Police v Vaaga [2011] WSSC 59 (14 March 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

PAULO VAAGA, male of Nofoalii and Fasitoo-uta.
Defendant

Counsels: Ms R Titi and Ms F E Niumata for prosecution
Ms M V R Peteru for defendant

Sentence: 14 March 2011

SENTENCE

After a defended hearing a panel of assessors by unanimous verdict found the defendant guilty of the crime of attempted rape which carries a 10 year maximum penalty at law. Again I would remind the press of the suppression order in relation to the complainants details as well as the defendants details as the defendant is a 40 year old relative of the complainant. In fact he is stated to be her uncle.

The brief facts as uncovered at trial were that the then 13 year old complainant who was still attending school was living at the defendants family. On the day of the incident the complainant as per the defendants instructions stayed behind from going to school with her younger siblings. She had stayed behind ostensibly to help the defendant carry out some tie-dyeing of material or "elei" of material. The only two on the family property were the defendant and the complainant as the complainants mother was also absent. The paints for the elei process were kept in a special room and the defendant instructed the complainant to go and fetch some paints. The complainants evidence at trial was that she entered the room and the defendant followed her in and locked the door. Inside the room he tried to undress her resulting in some of her under garments being ripped as they struggled. And that what he was trying to do was to rape her. She said that she was at one stage able to get free and she ran away to a neighbours house. And made a complaint against what the defendant had tried to do.

The defendant in his evidence at trial denied all these and admitted only to slapping the complainant because she spilt some paints on the floor. But the panel of assessors who heard the evidence by their verdict of guilty of attempted rape obviously disbelieved the defendant and accepted the complainants testimony. The defendant must therefore be sentenced on the basis of that verdict.

The offence of attempted rape carries a 10 year maximum as I have stated. But as cases go this is not as bad a case of attempted rape as some that have come before this court. There is evidence of force being used by the defendant to overpower the complainant, witness the torn clothes of the complainant. But there was no evidence at trial of any injuries caused to the complainant by the defendant or by their struggle. What however was apparent was the shattered psyche of an unwilling 13 year old girl who spent the rest of that day at the neighbours house in fear of returning to her house because of the defendants presence. And that when she got up the courage to return in the evening her first question to her siblings was as to the presence of the defendant.

Considering all the circumstances of your case an appropriate start point would be somewhere between 5 and 6 years in prison. I will therefore take the median point and start at 5½ years. For the apology such as it appears to be from the documents before me I make a deduction of 6 months from that term. Had there been clearer evidence of this a larger deduction may have been warranted or had the matter been dealt with by the village council perhaps the court could have given further credit. But on what has been placed before me 6 months is an appropriate deduction for the "apology".

Paulo is obviously a person of previous good character, the references that have been submitted to the court from the probation office and other sources are many. The defendant is a teacher at a district school and all references from his village, from his school, from his church, from his Member of Parliament and from other people speak highly of him. For all these plus the fact that he is a first offender he is entitled to credit and for that I deduct a period of 12 months. That means a total deduction of 1½ years. There are no other matters Paulo for which a deduction can be made or the court requires to make. That leaves a balance of 4 years. I note that is also generally in accord with other sentences in other attempted rape cases.

For this matter you are convicted and sentenced to 4 years in prison.

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