Police v Talailemotu [2013] WSSC 124 (29 August 2013)

[THE NAMES OF THE VICTIM, HER FAMILY, VILLAGE AND THE NAME OF THE SPECIAL INSTITUTION ARE SUPPRESSED]

SUPREME COURT OF SAMOA

Police v Talailemotu [2013] WSSC 124

Case name: Police v Talailemotu

Citation: [2013] WSSC 124

Decision date: 29 August 2013

Parties: POLICE (prosecution) and SIONA TALAILEMOTU male of Leauvaa-uta

Hearing date(s): 5 – 8 August 2013

File number(s):

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): JUSTICE SLICER

On appeal from:

Order:

Representation:
L Taimalelagi for prosecution
R V Papalii for defendant

Catchwords:

Words and phrases:

Legislation cited:
Crimes Ordinance 1961, s.47
Criminal Procedure Act 1972 ss.112, 113
Community Justice Act 2008 s.9

Cases cited:
Key v Police (CA 07/13)
Police v Pe’o [2008] WSSC 107
Police v Livai [2010] WSSC 67
Police v Tailo Lesa (28 January 2013)
Police v Satini Satini (13 September 2012)
R v Sand [1999] NZCA 132
R v Templar [1999] NZCA 212
R v Smith (1987) 44 SASR 587 (CCA)
Bailey v R (1988) 34 A Crim R 141
McDonald (1988) 38 A Crim R 391
R v Todd [1976] Qd R 21

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

POLICE

Prosecution

AND

SIONA TALAILEMOTU male of Leauvaa-uta

Defendant

Counsel: L Taimalelagi for prosecution

R V Papalii for defendant

Hearing: 5 – 8 August 2013

Sentencing Hearing: 22 August (prosecution) and 26 August 2013 (defendant)

Sentence: 29 August 2013

Charge: Rape (1 Count)

SENTENCE OF SLICER J

1. Siona Talailemotu has been found guilty by assessors of the crime of rape, contrary to the Crimes Ordinance 1961 section 47.
2. The crime was committed between 25 December 2008 and 1 January 2009. The rape resulted in the young woman becoming pregnant and she gave birth to a child on 21 September 2009.
3. The complainant now aged twenty-two years was afflicted with a sight impediment. She could see details of an object up to approximately one meter and had but limited sight capacity beyond that distance. She could however complete kitchen and other work under the guidance of others.
4. Because of her impediment the complainant had left her family home and was in the care of Mailo Pesamino, the principal of a special facility. Mailo was required to travel to New Zealand and approached parents of young persons attending the institution to take temporary care of the complainant during his absence. Siona, who also suffered a sight impairment was also involved in the institution and his parents agreed to care for the young woman during that period. She went to the home in early December, probably December 4.
5. The verdict of the assessors involved a finding that, in a night soon after Christmas, Siona went into the room where the complainant was sleeping. Whether they accepted that here were two younger girls sleeping in the same room at the relevant time is irrelevant to this sentencing hearing, and the Court makes no finding on this matter. If they were present neither was awakened by what happened.
6. Siona had sexual intercourse with the complainant without her consent. The verdict of the assessors on two other charges meant that a majority had not accepted the whole of the prosecution course. This Court may only make findings consistent or at least not inconsistent with the verdict. On that basis the Court is required to find:
   • (1) no weapon or threats were made;
   • (2) physical force by the stronger of the two allowed the offender to forcibly enter the vagina;
   • (3) the woman did not consent; and
   • (4) the complainant came under the care and protection of the defendant’s father but the defendant as a family member also had a lesser responsibility.
7. The Court notes that the defendant had sight disability and required assistance but his disability was less than that of the complainant’s. He could not read or write. Mailo assessed that he could move around the compound with a cane but needed assistance to go to and from the bus.

Pre-Sentence Report

8. The defendant is aged twenty-two and has had a stable upbringing. He was blind at birth and has attended the Nuanua O Le Alofa School for fifteen years. He has musical talent, and earns approximately $1,000 per year for performances and composing. It will be difficult for the prison to provide the resources and attention for his condition. He is a first offender.

Commencing Point

9. Consistent with the decision of the Court of Appeal in Key CA 07/13, the prosecution submits that this matter comes within Band 1, although it should reflect factors specific to the jurisdiction of Samoa. It suggests an appropriate starting point of ten years, uplifted to reflect the aggravating factors, specifically the disability suffered by the victim.
10. It relies on cases such as Pe’o [2008] WSSC 107 (nine years for a school bus driver who had committed rape on his young passengers); Livai [2010] WSSC 67 (rape by two persons on a thirteen year old student – seven years imprisonment); Tailo Lesa (28 January 2013) (rape of relative on young woman staying at his home; discount of one-third for early plea, reducing actual sentence to five years) and Satini Satini (13 September 2012) (commencing point of ten years for twenty-one year old male, reduced to seven years for mitigating matters).
11. Here the appropriate commencing point is eight years being the lower end of the Band. There was no physical violence other than force used in penetration. However, the commencing point will be uplifted primarily because of:
    • (1) the act resulted in pregnancy; and
    • (2) the taking advantage of the impaired state of the complainant.
12. The Court has been provided with comparable decisions of the New Zealand Courts on rape of females. In R v Sand [1999] NZCA 132, a twenty-eight year old had been convicted of a simple act of rape of a thirty-one year old woman with severe mental disabilities, making her pregnant in the process. The Court of Appeal determined the appropriate commencing point as eleven years but taking into account remorse, cooperation and an early plea substituted a sentence of seven and a half years. R v Templar [1999] NZCA 212 involved a defended trial of a rape on a mentally impaired woman who resided in an IHC home and made pregnant by an employee responsible for her case. The Court accepted a starting point of eight years, uplifted to nine years through aggravation, a sentence confirmed by the Court of Appeal.
13. This Court recognises that since those decisions the New Zealand Parliament has provided for higher penalties through legislation.
14. Here the prosecution relies on the following matters as ones of aggravation:

“i) Breach of trust as the complainant was staying at the defendant’s family home and was under the care of the family while her guardian was overseas, thus she would expect to be safe and protected in the family environment she was in;

ii) The complainant fell pregnant following the incident;

iii) The special vulnerability of the victim not only because of her visual impairment but also her physical surroundings as she was living with the defendant and his family when the incident occurred;

iv) The seriousness of the offending which requires deterrence.”

15. The Court regards the breach of trust as that committed by a friend rather than a carer. The two had attended the same institution. It was the parents who had the care of the victim. The remaining factors are fully accepted.
16. The Court will accept eight years as the commencing point, uplifted to ten years because of the aggravating factors stated above.

Victim Impact Statement

17. The young woman had lost her virginity through force not love or passion. She was scared and embarrassed. She suffered no physical injury other than the pain of forcible intercourse. She felt betrayed because she had been placed in what was believed to be a safe house.

Apology and Reconciliation

18. The defendant is not entitled to the benefit of a plea of guilty. The victim reports that she has not received an apology and there has been no reconciliation.

Defendant’s Impediment and Imprisonment

19. The defendant has a vision disability and will find imprisonment difficult than a healthy male of his age. He is a first offender. It is said that he can move around his house and compound using a ‘stick’ but cannot travel to his bus stop without assistance. Australian Courts have taken into account ill health or physical disability where it renders punishment more burdensome or where there is a rush of imprisonment having a grave effect on health. In Smith (1987) 44 SASR 587 (CCA) King CJ stated at 589:

“The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have on the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.”

20. That approach has been followed by the High Court of Australia in Bailey (1988) 34 A Crim R 141 and the appellate courts of New South Wales (McDonald (1988) 38 A Crim R 391). In Todd [1976] Qd R 21, the Court of Appeal of Queensland considered that it was relevant to take into account the fact that the accused was blind before proceeding to a custodial sentence.
21. But illness or impediment does not obviate punishment. The prosecution has told the Court that the prison has resources and made arrangements for persons afflicted with mental and physical impediments or need special care because of age. There are separate rooms and facilities.

Conclusion

22. The Court will take into account the age of the offender, his previous good record and disability and reduce the head sentence.
23. Counsel for the defendant, in a thorough and thoughtful address, urged the Court to regard the circumstances of this case as unique, pointing out that there is no blind prisoner currently held in custody and that he has already suffered much torment from other prisoners. She urged the Court to have regard to the provisions of the Criminal Procedure Act 1972 sections 112, 113 and the Community Justice Act 2008 section 9. She contended that the physical condition of the defendant meant that he was unlikely to reoffend. This crime has been committed at his home and he would find it impossible to harm another outside and should be regarded as representing a future risk to society. Thus it would be open to the Court to provide the alternate remedies of community service and supervision.
24. Her arguments are compelling. But the crime of rape, whatever the circumstances, is regarded by the legislature and the community as deserving a strong punishment. Whilst the Court has sympathy for the defendant it is required to apply the law. It will make allowance for the condition of the defendant and treat him more lightly than an unimpaired offender, and regard that as a significant matter of mitigation.
25. But the Court is required to act according to law and principle. The pregnancy and impairment of the woman are aggravating matters.
26. Taking into account the competing principles, the appropriate sentence is that of eight years imprisonment.

ORDERS:

(1) Siona Talailemotu is convicted of the crime of Rape.
(2) Siona Talailemotu is sentenced to a term of imprisonment for a period of eight years, such sentence to commence as and from 8 August 2013.
(3) The names of the victim, her family, village and the name of the special institution are suppressed.

..............................

(JUSTICE SLICER)