Police v Mika [2013] WSSC 20 (29 April 2013)

SUPREME COURT OF SAMOA

Police v Mika [2013] WSSC 20

Case name: Police v Mika

Citation: [2013] WSSC 20

Decision date: 29 April 2013

Parties: Police and Timusu aka Alesana Mika

Hearing date(s): 31/10/2012, 1/11/2012, 2/11/2012

File number(s): S429/12, S484/12

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Vaai

On appeal from:

Order: (Sentence)

Representation:
Leinafo Taimalelagi for prosecution
Ameperosa Roma for defendant

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

A N D:

TIMUSU aka ALESANA MIKA male of Vaoala and Tanugamanono

Defendant

Counsel: Leinafo Taimalelagi for prosecution

Ameperosa Roma for defendant

Sentence: 29 April 2013

S E N T E N C E

1. The defendant was found guilty of the charges of rape and indecent assault by a majority verdict of a panel of assessors on the 2^nd November 2012. Both the defendant and the complainant knew each other.
2. The events which led to the charges occurred on the evening of the 30^th March 2012 whilst the defendant and the complainant went for a joy ride in the defendant’s taxi and stopped by the side of the road a few meters away from a house on the other side of the road. Whilst both seated in their seats the complainant told the court the defendant forcibly removed her t-shirt. He then left his seat, walked to the other side of the car, opened the door and removed the rest of the complainant’s clothes. He then jumped inside and raped the complainant.
3. After the rape the defendant then drove the complainant home. Defence contended the sexual intercourse was consensual.
4. In returning the guilty verdicts the majority of assessors obviously rejected the defence evidence. Had it not been for his police statement in which he said he had forced sexual intercourse with the complainant, a different verdict would probably have been reached. If not, a ruling to veto the assessors’ verdicts would have been given immediately after the verdicts were delivered. The written admission was given whilst he was being told of his rights and after he verbally told the police twice that intercourse was consensual.

Submissions by the Prosecution

5. A sentence of not less than 10 years imprisonment is sought by the prosecution. It emphasised the need for deterrence given the severity and prevalence of sexual offences. It is also submitted that there are no mitigating factors which warrants reduction in offending.

The complainant

6. The complainant is single, unemployed, 21 years of age living with her mother at Alafua. Other than a love bite, she suffered no physical injuries as a result of the offending. She has an illegitimate child but she told the police in her written statement of complaint on the same night of the incident that she was a virgin before the defendant raped her.
7. She also initially denied under cross examination that she had no boyfriend prior to the date of the rape.
8. A victim impact report usually tendered by the prosecution in cases of sexual offending, was not given to the court for this sentence.

Pre-sentence Report

9. Defendant is 36 years, married and was at the time of offending a taxi driver. Testimonials attached to the pre-sentence report speak volumes of his impeccable good character, a devoted practicing catholic and a loving reliable husband.
10. His insistence on his innocence is in my view not a symbol of lack of remorse. Majority verdict and the circumstances surrounding the offending and particularly the demeanour of the complainant under cross examination would support such a view.

Discussion

11. No violence than that normally associated with rape was used as no significant bodily injury was found on the complainant’s body despite the fact that she was raped at the front seat of a taxi.
12. Penalties for the crime of rape, violence against women and abuse of children have increased in most countries including Samoa due mainly to the prevalence of the offending and the need to protect women and young children.
13. It is true that the complainant went through the ordeal of recounting the events of the offending by testifying during the defended hearing. But it is also true that the assessors’ majority verdict could also have gone in favour of the defendant, a factor which the court took into account when it invited counsels to make submissions on whether or not the trial judge should concur with the verdict as provided under section 100 Criminal Procedure Act 1972.
14. Consistency in sentencing is also a major contributing factor as unjustified departure can cause confusion and erode public confidence in the sentencing process.
15. A non mandatory maximum penalty of life imprisonment for rape gives substantive scope to the court in the exercise of its discretion to impose severe and less severe punishments as the circumstances surrounding the offending dictates.
16. The only aggravating factor the prosecution can identify in the offending are the seriousness and prevalence of the offending as well as the need to deter. But there is also an element of the breach of trust as the defendant originally offered to drive the complainant home.
17. Taking into account the nature of the offending I consider 6 ½ years for the offence of rape as the appropriate starting point. For his previous good record and first offender status, his obvious remorse and other matters raised in the probation report I deduct 3 years. He will serve 3 ½ years imprisonments for the rape charge less any time he spent in custody.
18. For the offence of indecent assault which preceded the rape, it can be classified as part and parcel of the acts which constituted the rape charge. He is convicted and discharged on the charge of indecent assault.
    

JUSTICE VAAI