Police v AS [2014] WSSC 147 (3 July 2014)

IN THE SUPREME COURT OF SAMOA
Police v AS [2014] WSSC 147

Case name:	Police v AS
Citation:	[2014] WSSC 147
Decision date:	03 July 2014
Parties:	POLICE (Prosecution) AS, male (Defendant)
Hearing date(s):	-
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	On the charges of rape, on each count you will be convicted and sentenced to 16 years imprisonment concurrent terms. On the charge of attempted rape this must be dealt with under the old law the Crimes Ordinance 1961 because it occurred in 2009 before the new Crimes Act came into force. The maximum under the old law was 10 years in prison. Considering all the relevant factors and making similar deductions the defendant on that charge will be convicted and sentenced to 6 years in prison, again a concurrent term. In respect of the indecent assault charges each of which carries a maximum under the old law of 7 years in prison. On the charges of indecent assault in 2003, 2004 and 2005 when the complainant was less than 12 years of age. These are serious assaults on a young girl in the family and was multiple offending. On those three charges the defendant will be convicted and sentenced to 5 years in prison each charge, again terms concurrent. On the charges of indecent assault that accompanied the attempted rape in 2009 and the rape in 2010 the defendant will be convicted and sentenced to 4 years in prison, again concurrent terms. On the remaining charges of indecent assault convicted and sentenced to 3 years in prison again concurrent terms.
Representation:	O Tagaloa for prosecution L R Schuster for defendant
Catchwords:	-
Words and phrases:
Legislation cited:	Crimes Ordinance 1961
Cases cited:	Key v Police [2013] WSCA 3
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

AS, male
Defendant

Counsel: O Tagaloa for prosecution
L R Schuster for defendant

Sentence: 03 July 2014

SENTENCE

1. After a defended hearing the defendant was found guilty by unanimous verdict of a panel of assessors of twelve charges. Seven (7) counts of indecent assault on the complainant during the years 2003, 2004, 2005, 2007, 2008 and two (2) in 2009; one (1) count of attempted rape in 2009 with an accompanying count of indecent assault; one (1) count of rape in May 2010 at Vaitele with and accompanying count of indecent assault; and one (1) count of rape in June 2011 also at Vaitele but no accompanying count of indecent assault.
2. Because the complainants date of birth was the 9^th of July 1994, this means that the three indecent assaults in 2003, 2004 and 2005 were committed when she was under 12 years of age. The four (4) indecent assaults in 2007, 2008 and 2009 was when she was between the ages of 12 and 16 years. The attempted rape and accompanying indecent assault charge in 2009 occurred when she was 15 years of age. The one charge of rape and the accompanying indecent assault charge in May 2010 when she was still under 16 years of age. She was two months shy of turning 16. The rape in June 2011 was one month before her 17^th birthday.
3. The complainant is the defendants wifes niece, that is she is the daughter of the defendants wifes sister. At all material times the defendant was living in the family of his wife and as a working man married into the family would have been partly responsible for the upkeep of the complainant and the younger members of the family. Names of the parties are not being mentioned because there is a suppression order as per normal procedure suppressing publication of the details of the complainant. For the better protection of the complainants identity that order should also extend to suppressing publication of the defendants details.
4. This is a sad case of sexual abuse of a young female family member by an older man married into the family. According to the evidence accepted by the assessors at the trial it started with indecent assaults on the complainant in 2003 when she was only 9 years of age. According to her evidence the indecent assaults consisted of the defendant kissing her and groping her breasts and private parts when no one else was around at the family home except young members of the family.
5. In 2009 this escalated to an attempt to rape her in the defendants taxi. After luring her into the vehicle on a pretext that he was sent by an aunty to fetch her. Of this incident in 2009 the complainant said the following at trial:

“Fai mai loa ma lana tala manaia la’u mea i le ai, ae o’u fai atu iai soia. Ma o la e momoli a’u ae fai mai e faatali. O iina na taumafai ai loa e tau momono lana mea ia te a’u. Na tago ai muamua a’u, na ou vaai atu o la e tago feanu i lana mea tago loa momono atu i totonu o a’u, ae o’u fai atu iai e tiga. Ae fai mai lana tala, matua laititi tele la’u mea. E le’i faia loa se mea ae tago ai au ma o’u susu ina ua fiu e fai atu e le ofi lana mea i totonu o a’u. Ma omai loa sau momoli mai a’u i luma i Faleula.”

6. The complainants further evidence was also that at the time the defendant appeared intoxicated. And that he said to her that he loved her and did not want her to have a boyfriend except for him.
7. In May 2010 the defendants offending graduated to a full rape. Where she described him taking her in his vehicle to a deserted house at Vaitele. Again on the pretext that one of the auntys wanted her. And after giving her alcohol she said the following:

“Tago loa faataoto a’u i lalo ae tago ai la’u mea. Tago loa momono i totonu lana mea, na uma loa na fai ua pa tago loa fai mai o le mea lea e ta’u o le sperm. E faaali mai lana pi lea ua pa ua iai le mea paepae o loo sau mai fafo.

Fesili: Le taimi lea na fai ai mea ia a AS ia oe, o a ou lagona i le taimi lena?

Tali: ua ou ita ia AS ua ou le lava ave mea a AS lea e fai ia te a’u. Ua ou leiloa foi poo le a lau tala o le a fai atu iai. A ou fai atu foi e tuu ua ita ia te a’u ma ese ana foliga pei o le a oso mai e fasi a’u. Ia na ou tago fai ona o lo’u fefe ia AS.”

8. A similar act of non consensual sex occurred the following year in June 2011 according to the evidence heard at trial. Her description of this account at trial was in the following terms:

“Fesili: o le a le mea na tupu?

Tali: na ma o i Vaitele ma AS. O le ma ooga mulimuli lea na fai mai ai loa AS ia te a’u pe ma te sosola. Fai mai matua alofa ia a’u. E leai sau tali na fai iai a’o le fai mai ia te ma kisikisi ma fai mai ana tala ae na’o lo’u tagi oute fefe e fai atu sa’u tala iai. O lea ua fai mai ia te a’u e ma te sosola ma te o e ma te nonofo i seisi mea. O lea ua fai mai ua fia manao ia a’u.”

9. The evidence also indicated that these matters only came to light when the complainant went on a trip to New Zealand and told her step mother about it. Step mother reported it to the girls biological mother who in turn laid the complaint with the police. All these seem to paint a picture of a mature man married into the complainants family becoming infatuated with a younger female member of the family at an early age. In some ways also seems suggestive of attempts by him to seduce the young girl. Its sinister over tone is that he was grooming her for sex from an early age, eventually resulting in his deflowering her when she was almost 16.
10. This case has many of the features identified by the Court of Appeal in Key v Police [2013] WSCA 3 which is the governing authority for cases of rape in Samoa. There was here planning and pre-meditation in the offending. It was committed on a young and vulnerable victim. Most of these offences were committed at the family home a place where young girls are entitled to feel secure and safe from such predatory behaviour. This is not a case of one-off offending but multiple offences committed over a long period of time. It involves a breach of trust because as we all know, older males in a Samoan family have a duty to protect the younger siblings of the family, especially the females. A trust that was violated by the defendant resulting in the loss of virginity of the young girl. Her gift to give not the defendants to take.
11. I will deal firstly with the most serious of the offences that of rape. The maximum for rape under the law of Samoa is life imprisonment. I agree with the prosecution that this case falls within Band 3 of the Peti Key bands of sentencing.
12. An appropriate start point considering all the relevant circumstances is 18 years in prison. A guilty plea would have substantially reduced that term but the defendant elected to put this matter to trial and the complainants distress at trial was obvious for all to see. No remorse has been expressed by the defendant who according to the pre-sentence report still claims innocence.
13. The only deduction that the defendant is therefore eligible for are for his background of service which is fully detailed in the pre-sentence report. That report refers to his good record of service to his family and the fact that is a financial supporter of his wife and eight (8) children. There are good references attached to the report from the defendants pastor and from other people who knew him well. He has previous convictions but those are for different offences and I therefore treat him as a first offender for sexual offence purposes and ignore those convictions. There is reference in the probation office report to an apology and reconciliation and a settlement between the defendant and the complainants family.
14. I accept it would have been a difficult situation considering the defendants wife and the complainants mother are sisters. The defendant is notwithstanding his protestation of innocence entitled to some credit for this reconciliation. For all those matters I will make a blanket deduction of 2 years from the start point for sentence leaves 16 years as a balance. There are no other deductions that can be applied to the defendants case.
15. On the charges of rape, on each count you will be convicted and sentenced to 16 years imprisonment concurrent terms.
16. On the charge of attempted rape this must be dealt with under the old law the Crimes Ordinance 1961 because it occurred in 2009 before the new Crimes Act came into force. The maximum under the old law was 10 years in prison. Considering all the relevant factors and making similar deductions the defendant on that charge will be convicted and sentenced to 6 years in prison, again a concurrent term.
17. In respect of the indecent assault charges each of which carries a maximum under the old law of 7 years in prison. On the charges of indecent assault in 2003, 2004 and 2005 when the complainant was less than 12 years of age. These are serious assaults on a young girl in the family and was multiple offending. On those three charges the defendant will be convicted and sentenced to 5 years in prison each charge, again terms concurrent.
18. On the charges of indecent assault that accompanied the attempted rape in 2009 and the rape in 2010 the defendant will be convicted and sentenced to 4 years in prison, again concurrent terms.
19. On the remaining charges of indecent assault convicted and sentenced to 3 years in prison again concurrent terms.
    

JUSTICE NELSON