Police v Kome [2012] WSSC 85 (15 June 2012)

SUPREME COURT OF SAMOA

Police v Kome [2012] WSSC 85

Case name: Police v Kome

Citation: [2012] WSSC 85

Decision date: 15 June 2012

Parties:
Police v Gafa Kome, male of Leulumoega tuai and Alafua

Hearing date(s): 28 May 2012

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Nelson J

On appeal from:

Order:

Representation:
Ms F E Niumata for prosecution
Defendant unrepresented

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

GAFA KOME, male of Leulumoega tuai and Alafua.
Defendant

Counsel: Ms F E Niumata for prosecution
Defendant unrepresented

Hearing: 28 May 2012

Submission: 11 June 2012

Decision: 15 June 2012

ORAL DECISION AND SENTENCE OF NELSON J

1. This defendant first appeared for sentence on 07 May 2012 on charges of rape, carnal knowledge and indecent assault. I expressed reservations in relation to the rape and carnal knowledge charges which he had pleaded guilty to without the benefit of counsel. There was a question mark in my mind as to the issue of penetration given the state of the evidence and the young age of the complainant. I have now had the benefit of hearing the complainants evidence.
2. For both rape and carnal knowledge to be sustainable it is of course essential that the prosecution prove sexual intercourse has occurred. Section 46 of the Crimes Ordinance 1961 provides that “sexual intercourse is complete upon penetration and there shall be no presumption of law that any person is by reason of his or her age incapable of such intercourse.” That is in accord with the common law which is that the smallest degree of penetration of the female private part by the male member is sufficient and for these purposes rupture of a hymen is irrelevant. See generally Adams ‘Criminal Law and Practice’ Second Edition para 946 and R v N decision dated 9 December 1992 of Chief Justice Eichelbaum.
3. By virtue of section 46, once penetration occurs sexual intercourse is deemed complete. The problem in this case is the complainants police statement is ambiguous. While it relates in paragraph 8 that the defendant put his penis into her private part it also says there was a tickling sensation in her privates and no pain because his penis did not penetrate her (“sa ou faalogoina le pai mai ole poti a Gafa i la’u mimi, ma sa tago loa i le oloolo lana poti i la’u mimi, ma na ou faalogoina le matenatena o la’u tioi...oute lei faalogoina se tiga ona o lea oute iloaina e lei tomo i totonu le poti a Gafa i la’u pi”). She confirmed this lack of penetration in her oral evidence to the court in response to questions from the court.
4. I also noted that the complainants medical report states the hymen was intact but there was “reddening with some tenderness of the medial aspect of the labia minora.” And under vaginal examination “no bruising on external surface.”
5. All this does not necessarily establish penetration beyond reasonable doubt and in my view the defendant may have an available defence to rape and carnal knowledge based on the evidence. The defendant is unrepresented by counsel and it is my duty to ensure he is at all times given a fair trial. In the circumstances I will not accept his guilty plea to the charges of rape and carnal knowledge, I propose to reverse them to pleas of not guilty and direct that if he is unable to afford counsel the Registrar should grant him legal aid and appoint suitable counsel to represent him. I also direct a copy of these remarks as well as the earlier remarks I gave when this defendant first appeared be made available to his counsel.
6. No such doubts exist in relation to the charge of indecent assault. On that charge I will now proceed to sentence the defendant. I note the defendant in respect of that is not a first offender. As indicated previously he was sentenced as a 17 year old in 2008 for indecent assault of a 7 year old girl. His history showed a propensity towards sexual offending as related to the probation officer by his mother. His previous offending coupled with the present offending also shows tendencies towards his sexual assaults being directed towards young girls.
7. Clearly the likelihood of his re-offending given the absence of remedial treatment is high. The public in particular young girls thereof require to be protected from the defendant. And a prison term for this offending considering its circumstances is also appropriate. Aggravating factors include the breach of trust by the defendant who was caring for the complainant at offending time, the 7 year age difference between the parties, the vulnerability of the 12 year old complainant who was home alone with the defendant when this offending took place, the luring of the complainant to a secluded area and the nature of the defendants acts which included performing oral sex on her and getting on top of her and rubbing his penis over her private parts. Actions for which he received his previous imprisonment term from which the defendant appears to have taken no lesson. There is no evidence here of digital penetration or satisfactory evidence of penile penetration as referred to above.
8. The maximum penalty for the offence you have committed of indecent assault is 7 years in prison. An appropriate start point would be 3 years in prison. For your guilty plea in this matter I will deduct one-third of that sentence. You will receive a full deduction because it was the court which required the complainant to appear and give evidence. That means a term of one year is deducted from the 3 years start point leaving a balance of 2 years. There are no other factors in your favour or in respect of which mitigation should be granted. But your previous conviction for this same offence in 2008 means the penalty must be upgraded from 2 years to 3 years because of your propensity towards sexual offending in relation to young girls. It is hoped that this further penalty will act as some kind of deterrent for you in respect of future conduct of this nature. You are accordingly convicted and sentenced to 3 years in prison in respect of the indecent assault charge. Your remand in custody time awaiting sentence is to be deducted from that. I direct the Attorney Generals office to draw to the police attention that given the defendants age and sexual history of offending against young persons, it is the courts recommendation that he not be allowed to serve his time at Olomanu Juvenile Facility even though he is 20 years of age.
9. In respect of the rape and carnal knowledge charges the defendants plea is reversed to not guilty and those matters are adjourned to the 25^th of June for counsel to be either obtained for the defendant or appointed for him.

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JUSTICE NELSON