Police v Autagavaia [2013] WSSC 12 (10 April 2013)

SUPREME COURT OF SAMOA

Police v Autagavaia [2013] WSSC 12

Case name: Police v Autagavaia

Citation: [2013] WSSC 12

Decision date: 10 April 2013

Parties:
POLICE (Prosecution) and PEREFOTI FATA aka PEREFOTI AUTAGAVAIA male of Vailoa Palauli and Saoluafata.

Hearing date(s): 4 April 2013

File number(s): S1612/12

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Chief Justice Patu Falefatu Sapolu

On appeal from:

Order:

Representation:
R Titi for prosecution
L J Brunt for accused

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

FILE: NO.

BETWEEN

P O L I C E

Prosecution

A N D

PEREFOTI FATU akaPEREFOTI AUTAGAVAIAmale of Vailoa Palauli and Saoluafata

Accused

Counsel:

R Titi for prosecution

L J Brunt for accused

Sentence:10 April 2013

SENTENCE

The charges

1. The accused appears for sentence on two counts of rape and two counts of having sexual intercourse with a young related girl.
2. Initially, the accused was charged with a number of counts including six counts of rape. He pleaded not guilty to all those counts. Most of those counts, including four counts of rape, were subsequently withdrawn by the prosecution. That was done pursuant to a plea bargain between the prosecution and the defence as counsel for the prosecution informed the Court from the bar. That left two counts of rape and two counts of having sexual intercourse with a young related girl. The accused then withdrew his initial not guilty plea and pleaded guilty to those remaining counts. The matter was then adjourned for sentence.
3. On the date of sentence, counsel for the accused sought leave to have the accused’s plea of guilty to the two remaining counts of rape to be changed back to a plea of not guilty. This was strongly opposed by counsel for the prosecution. The matter was then set down for hearing the defence application to have the accused’s plea of guilty to the two remaining counts of rape withdrawn and to be substituted with a not guilty plea. The plea of guilty to the two remaining counts of having sexual intercourse with a young related girl still remained.
4. At the hearing of the defence application for change of plea from guilty to not guilty to the remaining counts of rape, I decided to decline the application.

The offending

5. As it appears from the prosecution’s summary of facts, the accused is now a fifty year old male. He is married with four children including the victim who is an adopted daughter. The victim is now sixteen years old but at the material times was thirteen and fourteen years.
6. On a date in June 2009, the victim’s mother and sister went to the plantation while the victim stayed home with the accused and her grandmother. The accused then told the victim to go inside the bedroom for an errand. He then followed the victim into the bedroom while the grandmother was watching TV in the sitting room. When the accused was inside the bedroom, he closed the door and told the victim to lie on the floor and to take off her clothes. The accused then took off his own clothes, lay on top of the victim, and had sexual intercourse with her. The victim did not consent.
7. Then on a date in July 2009, when the victim came home from school, the accused told her to turn on the TV. While watching TV, the accused told the victim to get him a pillow from the bedroom as he was tired. After the victim was in the bedroom to get the pillow, the accused entered and told her to go lie on the bed. She refused. With a persistent tone of voice, the accused again told her to go lie on the bed, and she did so. The accused then told the victim to take off her clothes while he took off his own clothes. He then lay on top of her and had sexual intercourse with her. Again, the victim did not consent. After sexual intercourse, the accused told the victim not to tell anyone about what has happened between them.
8. Then on a date in August 2010, when the victim and the accused were alone at home, the accused called to the victim to go inside the bedroom. The accused followed and when both were inside the bedroom, the accused told the victim to take off her clothes. They then laid on the floor and had sexual intercourse.
9. On another date in August 2010, the accused again followed the victim into the same room. He laid her on the floor and again had sexual intercourse with her.

The accused and the victim

10. As already mentioned, the accused is now a fifty year old male who is married with four children including the victim who is an adopted daughter. The pre-sentence report shows that he had a low level of education and has never had formal employment. He used to work on his family’s plantation. As a result of these offences, the accused has been banished from the village of his wife where he had stayed with his wife and children.
11. It also appears from the character references from the accused’s family, village pulenuu, and church leader that, except for these offences, the accused had been a person of good character. The character references refer to accused’s offending as out of character.
12. On the other hand, the impact report on the victim, shows that at the times of these offences the victim was scared to tell anyone for fear of the accused beating her if she did. She was also scared that her mother would give her beating if she found out what the accused was doing to her. Because of what the accused was doing to her, the victim was always scared and sad when she returned home from school. Her home was no longer a place she looked forward to after school.
13. The victim is no longer with her family as she is now under the supervision of the Victim Support Group. She told the probation service that she has forgiven the accused and seeks leniency on him when the Court passes sentence. In spite of this kind gesture from the victim, I am not, in the circumstances, able to take her forgiving attitude as a mitigating factor in favour of the accused.

The aggravating and mitigating factors

14. There are several aggravating factors in this case. In the first place, is the abuse by the accused as father of the trust reposed in him by the victim as daughter. Secondly, this is not a case of one incident of sexual offending but four such incidents. Thirdly, is the age difference of about 34 years between the victim and the accused. Fourthly, is the emotional and psychological impact of this offending on the victim as shown from the victim impact report. And, fifthly, as a result of this offending the victim is no longer able to live at her home with her mother and siblings; she is now under the supervision of the Victim Support Group.
15. As for the mitigating factors, the first is the fact that the accused is a first offender and was a person of good character prior to the commission of these offences. Secondly, the accused has been banished from his village which is a form of punishment.
16. I give no discount for the accused’s plea of guilty to the two counts of rape. I will, however, give only a limited discount for the belated plea of guilty to the two counts of having sexual intercourse with a young related girl.

The decision

17. In setting the starting point for sentence in this case, I will apply the totality principle as there are four counts. I will also take into account the maximum penalties for the offences, the sentences passed in recent comparable cases, the need for deterrence in this kind of case, and the aggravating factors relating to the offending. There are no mitigating factors relating to the offending. I will set the starting point for sentence at 15 years. There are no aggravating factors relating to the accused as offender. Thus, it is not necessary to increase the starting point for sentence on that basis, For the mitigating factors relating to the accused as offender, I will deduct 1 ½ years for the fact that he is a first offender. That leaves 13½ years. I will deduct only 6 months for the belated plea of guilty to the two counts of having sexual intercourse with a young related girl. That leaves 13 years. I will further deduct another year due to the fact that the accused has been banished from his village. That leaves 12 years.
18. The accused is sentenced to 12 years imprisonment on each count of rape and 4 years imprisonment on each count of having sexual intercourse with a young related girl. All sentences to be concurrent so that the accused will serve a total sentence of 12 years imprisonment. Any time the accused has already spent in custody pending the outcome of this matter is to be further deducted from that sentence.
    

CHIEF JUSTICE