Police v PE [2013] WSSC 101 (5 August 2013)

SUPREME COURT OF SAMOA

Police v PE [2013] WSSC 101

Case name: Police v PE

Citation: [2013] WSSC 101

Decision date: 05 August 2013
Parties:
POLICE v PE (First Defendant) and VILIMA’A SALU male of Vaimoso and Tuana’i. (Second Defendant)

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Nelson

On appeal from:

Order:
Representation:
L Su’a-Mailo and O Tagaloa for prosecution

Catchwords:

Words and phrases:

Legislation cited:
Cases cited:
Key v Police [2013] WSCA 3

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE

Prosecution

AND:

PE

First Defendant

AND:

VILIMA’A SALU male of Vaimoso and Tuana’i.
Second Defendant

Counsel: L Su’a-Mailo and O Tagaloa for prosecution
Defendants unrepresented

Sentence: 05 August 2013

SENTENCE

PE and Vilima’a are for sentence on charges of sexual offending on a young girl. They are appearing for sentence together because their offending concerns the same girl. But they will be sentenced separately as they face separate charges. I will deal with PE first.

Because he is the uncle of the young girl a suppression order will issue suppressing publication of the details of both him and the complainant. PE faces three (3) charges of rape and seventeen (17) counts of sexual intercourse with a girl under 12 years of age and one (1) count of indecent assault.

The amended summary of facts from the police which the defendant accepts states as follows: he is a 23 year old single male and lives at home caring for his parents and his extended family. The complainant is 12 years of age attending primary school but at the time of the offending was under 12 years of age. The defendant is the uncle of the young girl being the youngest brother of her father. At all material times the complainant was visiting her grandparents place where the defendant was staying. It is at that place the offending occurred.

The offending began in the year 2010. The police summary says the first incident occurred during 2010 one evening thereof on a date unknown. The complainant went to the toilet and she was surprised when the defendant entered saying “aua e ke pisa” and took off his clothes. He spread her legs and inserted his private part into hers which caused her pain. He then had sexual intercourse with her. After which he told her “aua lava ne’i e pisa i seisi.” On this first occasion the defendant says the complainant did not consent to the sex.

Second incident also occurred in 2010 again in the toilet and involved forceful sexual intercourse by the defendant. At the end of which he also instructed her not to tell anyone. The third incident of intercourse again occurred in 2010 on a day the complainant did not go to school. While she was resting in one of the bedrooms the defendant approached her undressed her and had forced sexual intercourse with her. According to the complainant and to the defendant again this was done without her consent.

During the time that these acts of rape occurred the complainant was 9 to 10 years of age. Because she was born on the 11th of September 2000 according to her birth certificate. There were further instances of sexual offending in this matter. Again in the year 2010. But on those occasions it appears that the complainant consented to the acts of sex. There were two such occasions one in the toilet and one in the girls bedroom when the defendant visited her uninvited. On both occasions he also told her to keep this secret which the complainant did.

The police summary of facts goes on to state that the sexual abuse continued into the year 2011. Three instances of intercourse occurred in January 2011 at night and in the complainants bedroom. Two occurred in the month of February also at night in the complainants bedroom. Five occurred in the month of April 2011 in both the toilet and the bedroom. The final two incidents occurred in September 2011 in the girls bedroom. The girl told the police that this got to a stage where the defendant would just say to her “fia mea foi” and she would comply. The offending only came to light when the complainant was interviewed regarding an alleged indecent assault by the second defendant.

Looking at this matter overall it is a sordid tale of sexual abuse of a young girl by a family member. Here is a mature defendant taking advantage of his niece who was half his age. While there is no evidence before the court of physical harm to the girl there is no doubting the psychological effect all this would have had on one so young. Damage which cannot be fully assessed in the absence of relevant reports. One thing that can be said with certainty is that she lost her virginity to her uncle. A young females treasured possession to be given to a person of her own choosing.

Other aggravating factors of the defendants offending include the fact that his actions would have been planned and pre-meditated, calculated to occur when the young girl was alone with him in the house. This is not a case of one off-offending. It is a case of multiple offending with three counts of rape and seventeen counts of intercourse with a girl under 12 years of age. The one count of indecent assault pales into insignificance when compared to those charges.

There has been an abuse of the position of trust of the defendant as the uncle of this young girl. In Samoan society older male members of a family such as uncles are charged with the responsibility of caring for their younger nieces and nephews. And parents are usually quite happy to leave children in the care of their uncles resting assured in this regard. They do not expect that an uncle would do such things to one so young. This is the trust that the defendant grossly abused.

For the defendants information the Court of Appeal of this country recently in Key v Police [2013] WSCA 3 laid down the approach the court must follow in sentencing rape cases. The court said sentencing must be approached on the basis of four sentencing bands. And that the approach of the sentencing judge is to decide first within which sentencing band a particular case lies. This assessment must be based on the circumstances of the offending including the matters referred to above.

Four bands were prescribed by the Court of Appeal. Band one where the start point ranges from 8 to 10 years. Band two where the start point ranges from 9 to 15 years. Band three where the start point ranges from 14 to 20 years. Band four where the start point ranges from 19 years to life. Rape is of course punishable by a maximum penalty of life imprisonment.

The Court of Appeal stated in that case that band four or the highest band applies to cases which have aggravating features of a relatively serious nature. Such as those present here. And is to be applied where a case involves multiple offending over a period of time. The court observed that: “repeat family offending would fall into this band.”

Applying those tests the start point for sentence in respect of the three rape charges against you therefore falls in the band four range. But taking into consideration your relationship to the young girl and the fact that this offending occurred from time to time when she visited where you were staying; and because the police summary of fact indicates a low degree of violence was involved; I will adopt for your case the lower end of the band four sentencing range as the start point for sentence. That is a start point of nineteen years.

From that deductions you are entitled to need to be made. Firstly for you guilty plea I will deduct one-quarter of the penalty. Because your plea obviated the necessity for this young girl to be put through the trauma of a trial. And because your plea means a saving of the States limited resources and the courts valuable time. And it represents remorse for your actions. That means a deduction of four and three-quarter (4 ¾) years from your start point sentence. Leaves a balance of fourteen and one-quarter (14 ¼) years.

The second deduction PE you are entitled to is to reflect your good previous record. This is commonly referred to in sentencing as ‘first offender status’. But it is not limited to that factor alone. That is only a summary description of various factors which hold true for most offenders in this country. Namely that you are a person with a previously unblemished record of good character and service to your family, to your “ekalesia” (church) and to your “nuu/alalafaga” or village. These are qualities you undoubtedly have as evidenced by the pre-sentence probation office report on you. In recognition of those I will make a deduction of one year from the remaining sentence leaving a balance of thirteen and one-quarter (13 ¼ ) years.

The third and final deduction to which you are entitled is to reflect the ifoga and reconciliation as confirmed to the court by the complainants father. He also unsuccessfully petitioned for leave to withdraw this matter. As explained to him and to your family because this sort of offending is unfortunately far too common, efforts are being made at every level to stamp it out. There seems to be emergent in this country a very disturbing culture of sexual abuse against the young and vulnerable of our society by the very people who are supposed to look out and care for them. The level of the deduction however must be measured against the fact that this is sexual offending within your immediate family and reconciliation has occurred within the family unit. In recognition of that reconciliation process I will remove the quarter year from the balance of your sentence leaving thirteen (13) years. There are no other deductions PE you qualify for in law.

For these counts of rape you are convicted accordingly and sentenced on each count to thirteen (13) years in prison but the terms are to be served concurrent. The court will order also that your time spent in custody awaiting sentence is to be deducted from that period.

In respect of the seventeen counts of sexual intercourse with a girl under 12 years of age, each count carries a 10 year maximum penalty. In respect of those counts occurring during the year 2010 you are convicted and sentenced to six (6) years in prison but again those terms are to be served concurrent to your rape term. In respect of those counts occurring in the year 2011 you will be sentenced to five (5) years on each count but again concurrent to your term for rape.

On the final charge against you of indecent assault which carries a seven year maximum. Considering the nature of the indecent assault and other factors, you are convicted and sentenced to eighteen (18) months in prison again concurrent to your rape term.

Vilima’a is the second of the two defendants in relation to this young complainant. He pleaded guilty to indecently assaulting her. A suppression order in respect of his matter will only extend to the details of the complainant and not his. The amended summary of facts from the police which the defendant has accepted indicates he is a 55 year old male of Vaitele-fou and Tuanai. At the time of the alleged offending he was living at the complainants family. He is said by the police summary to be the brother of the complainants auntys husband.

On a night during the month of October 2011 the complainant was watching movies with other relatives on the defendants laptop. After watching movies the defendant instructed them all to go home but he called the complainant back and directed her to fetch something from under his bed. As she was looking underneath the bed he grabbed her hand and seated her next to him. He kissed her cheek and removed her lavalava leaving only her panty on. He rubbed her vagina with his fingers which led to the complainant leaving the room. Eventually the matter found its way into police hands and the defendant was apprehended and interviewed leading to the charge of indecent assault.

The aggravating factors of the offending as summarized by the prosecution in their submission include firstly the age difference between the defendant and the young girl of about 40 years. Clearly he is a mature man and she just a naïve young girl. The nature of the offending is also relevant. Plus the fact that this took place in the home of the complainant where the defendant was a guest. A place where the complainant is entitled to feel protected and secure.

Considering all the relevant factors and the fact that this offence carries a 7 year maximum penalty an appropriate start point for sentencing is 3 years in prison. For the defendants guilty plea I will deduct one year from that term leaving a balance of 2 years. For his previous good character and unblemished record I will deduct 6 months from that leaving a balance of one and a half (1 ½) years. For the reconciliation and the defendants apology to the complainants father and family which has been confirmed to the court by the defendants probation office pre-sentence report I will deduct a further period of 6 months from the balance leaving one year.

There are no other deductions Vilima’a that you qualify for according to the law. For the offence of indecent assault you will be convicted and sentenced to 12 months in prison but your remand in custody time awaiting sentence is to be deducted from that term.

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