Police v KP [2014] WSSC 142 (16 June 2014)

IN THE SUPREME COURT OF SAMOA
Police v KP [2014] WSSC

Case name:	Police v KP
Citation:	[2014] WSSC
Decision date:	16 June 2014
Parties:	Police (Prosecution) KP (Defendant)
Hearing date(s):	-
File number(s):	S2940/13, S2941/13, S2942/13, S2943/13, S2944/13
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	On the primary charge of rape the defendant will be convicted and sentenced to 14 years in prison. But his time awaiting sentence is to be deducted from that. Carnal knowledge carries a 10 year maximum penalty. Considering all the circumstances of this matter the defendant will be convicted on each of the carnal knowledge charges and sentenced to 5 years in prison. But those terms are to be served concurrent to the term for rape.
Representation:	O Tagaloa for prosecution Defendant unrepresented
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:

POLICE
Prosecution

AND:

KP
Defendant

Counsel: O Tagaloa for prosecution
Defendant unrepresented

Sentence: 16 June 2014

SENTENCE

3. The defendant faces a number of charges to which he has pleaded guilty. The primary one is a charge of rape S2940/13. It alleges that during the month of April 2013 he did rape the young girl involved in this matter. There are four additional charges to which the defendant has pleaded guilty all counts of carnal knowledge said to have occurred once in the month of April 2013 once in May and twice in June 2013.
4. The complainant involve in this matter is the defendants first cousin. At the time of this incident she was 12 years of age and the defendant was 19. She was attending Year 6 at the local school. Before I continue sentencing I would ask our ladies of the press to please note the usual suppression order is in force in relation to the details of the complainant. Originally when the police summary of facts was read to the defendant he maintained that he did not rape the complainant when they first had sexual intercourse. But on further examination and subsequently in court he admitted to me that the first encounter was a rape. The subsequent intercourses she consented to. Those subsequent intercourses are the subject of the four carnal knowledge charges filed by the prosecution and to which the defendant pleaded guilty.
5. The police summary of facts in this matter indicates the defendant normally lives with his mother at Malie-uta. In February 2013 he went to live at the complainants family in another village. The rape is said to have occurred on an afternoon in April 2013 when the defendant, the victim and the victims two younger male relatives were at home alone. The police summary says the two young male relatives were asleep in the house.
6. The defendant tried to firstly get the victim to go with him to the bush behind the house but she refused. The victim continued cleaning and doing chores around the house. When suddenly the defendant ran into the living room grabbed her by the hand and took her to one of the rooms of the house. He closed the door and told her not to tell anyone what was going to happen or he would beat her up. The defendant told her to undress but she refused. So again he threatened to beat her. He then undressed her and laid her down on the bed. He took off his clothes, he spread her legs and got on top of her and had forceful sexual intercourse with her. The victim cried out in pain and started to hit the defendant in the chest but he kept on with what he was doing. He only stopped when he was satisfied. He then jumped off the victim and put on his clothes.
7. The police summary says the victim felt wetness between her thighs and when she touched it she saw it was blood mixed with a white substance obviously semen. He told the girl to get dressed and go and check the food then he left the room. The young girl says it was painful for her to walk so she spent a little time in the bedroom. And that when she felt better she went to the cook house and checked the food. The defendants last words to her were “aua aua lava nei e pisa i seisi va’ava’ai iai i le mea e tupu pe a e tautala.” Probably because of that threat the girl kept quiet about what had happened.
8. Subsequently in the month of April and in the month of May and twice in the month of June she had sexual intercourse with the defendant. The defendant said she consented to all those acts of sex although I would imagine that consent was a result of his threats to her. Threats made to a 12 year old by a young man 7 years older than her. The police summary of facts indicates all these incidents of sex occurred at the complainants house when the family was absent.
9. In October 2013 the defendant returned to his family at Malie-uta. Around about that time the girl found out that she had become pregnant. Obviously from the defendant. Only then did she tell her family what had happened. The matter was then reported to the police resulting in the charges against the defendant.
10. I will deal with the most serious charge first that of rape. The maximum penalty under law is life in prison. The appropriate sentencing approach has been determined by the Court of Appeal in Key v Police [2013] WSCA 3. There the Court of Appeal said that rape sentencing falls into four kinds of categories called sentencing bands. Band B1 falls into the 8 to 10 year period. Band B2 in the 9 to 15 year period. Band B3 in the 14 to 20 year period and Band B4 in the 19 years to life imprisonment period. Which band a case fits into is determined by the circumstances of the particular case.
11. The highest band of 19 years to life is the worst kind rape which has the aggravating factors of B3 and involves repeated family offending over a period of time. Into that B4 category falls the sort of cases involving fathers repeatedly raping their daughters. Sadly not something that is unknown in this country. But this case does not fall within that band or in that sentencing range.
12. However in determining an appropriate band the court looks at matters such as the young age of the girl involved, the fact that she was a virgin before she was raped, the fact that the defendants position in the family was as a trusted older cousin looking after the younger members of the family. He was 7 years older than the young girl. The court also looks at the effect this matter has had on the victim who ultimately fell pregnant from the defendant. And the fact that this 12 year old girl has rights which are protected by domestic as well as international law such as the Convention of the Rights of the Child. A Convention this country is party to which the court is directed to have regard to. This young girls right to live a peaceful free and happy existence as a teenage girl was trampled into the ground by the defendants actions. She now has an unwanted pregnancy and it is not clear what will happen to the baby.
13. The court also takes into consideration the pre-meditated nature of the defendants offending. He waited till the young girl was alone and vulnerable and no older members of the family were at home. Then he raped her in her own house. A place where she is entitled to feel safe. The court also takes into consideration the threat that he used in order to effect his purpose. And the fact that the penalty for this case should be a deterrent against the defendant personally and a general deterrent to all young men in relation to young cousins under their care within a family environment.
14. Considering all these factors the appropriate start point for sentence is in my view the B3 sentencing range but closer to its lower end. An appropriate start point is 15 years in prison. From that you are entitled to certain deduction which I will now make on your behalf. For your guilty plea I give you a limited deduction only. Because your dispute of the summary of facts meant the victim had to be called to give evidence. She had clear difficulties with her evidence which only goes to show the harrowing extent of her situation and predicament. For that I therefore give you a limited deduction of 6 months only. Leaves a balance of 14½ years.
15. KP however has a good pre-sentence report plus his supplementary report where his mother speaks of his contribution to the upkeep of the aiga. He has a clean police record this is his first court appearance. For all that I will deduct a further 6 months leaves 14 years. There has been no reconciliation in this matter or village penalty there are therefore no other deductions that should be made to the defendants sentence.
16. On the primary charge of rape the defendant will be convicted and sentenced to 14 years in prison. But his time awaiting sentence is to be deducted from that.
17. In relation to the 4 charges of carnal knowledge I accept that there may have been an element of consent on the part of the girl involved. But the law is there to also protect young girls from making unwise choices. There was undoubtedly an aspect of coercion in what the defendant did in seducing this young girl and making her pregnant. And then using threats to keep her quiet. Carnal knowledge carries a 10 year maximum penalty. Considering all the circumstances of this matter the defendant will be convicted on each of the carnal knowledge charges and sentenced to 5 years in prison. But those terms are to be served concurrent to the term for rape.
    

JUSTICE NELSON