Police v Soesa [2014] WSSC 16 (5 May 2014)

SUPREME COURT OF SAMOA
Police v Soesa [2014] WSSC 16

Case name: Police v Soesa

Citation: [2014] WSSC 16

Decision date: 5 May 2014

Parties:
POLICE (prosecution) AND RICHARD POPE SOESA aka POE SOESA male of Leulumoega.

Hearing date(s):

File number(s): S2420/13

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:

Representation:
L Su’a-Mailo for prosecution
D Roma for accused

Catchwords:

Words and phrases:
sexual intercourse with a severely intellectually disabled person , maximum penalty, mentally retarded-profound type, severely intellectually impaired, aggravating and mitigating features, sentence

Legislation cited:
Crimes Act 2013 s.63

Cases cited:
Police v Faafua [2010] WSSC 67
Police v Peo [2008] WSSC 107
Police v Siaki [2010] WSSC 174

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU’U

FILE NO: S2420/13

BETWEEN:

P O L I C E
Prosecution

A N D

RICHARD POPE SOESA aka AVAU POE SOESA of Leulumoega.
Accused

Counsel:
L Su’a-Mailo for prosecution
D Roma for accused

Sentence: 5 May 2014

S E N T E N C E

1. The accused appears for sentence on four counts of sexual connection by having sexual intercourse with a severely intellectually disabled person, contrary to s.63 of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment. He initially pleaded not guilty to the charges but after the medical and psychiatric evidence and reports were presented to the Court he vacated his not guilty plea and entered a guilty plea.

The offending

2. At the time of this offending, the accused was 18 years old and attending school. The victim was 31 years old and staying at home doing family chores. She is a severely intellectually disabled person. Between 1 April 2013 and 31 May 2013, they had sexual intercourse on four separate occasions under the coconut trees inside an enclosure on neighbouring land near the house of the victim’s family.
3. On the first occasion of sexual intercourse, the accused went to fetch water from the tap in front of the house of the victim’s family. He met the victim. They then went inside the enclosure on a neighbouring land and had sexual intercourse under the coconut trees.
4. On the second occasion of sexual intercourse, the accused again went to fetch water from the tap in front of the house of the victim’s family. At that time, the victim’s sister and her husband with whom she stays were away. The accused saw the victim. He told her to go inside the enclosure on the neighbouring land. The accused then followed. He undressed the victim and again they had sexual intercourse under the coconut trees.
5. On the third occasion, the accused again went to the house of the victim’s family. Again they ended up under the coconut trees inside the neighbouring enclosure and had sexual intercourse.
6. On the fourth occasion, the accused again went to the house of the victim’s family. At that time the victim’s sister and her husband with whom she stays were again away. The accused and the victim again went to the same enclosure and had sexual intercourse under the coconut trees.
7. Then in October 2013, the victim’s sister noticed that the victim was fatigue and unwell. She had also lost her appetite for food. She then questioned the victim whether something had happened to her and the victim replied that the accused had had sexual intercourse with her.
8. The victim was then brought to the Tupua Tamasese Hospital where she was medically examined by a doctor. This doctor was called as a witness by the prosecution. She testified that she found the victim to be 6-7 months pregnant. The victim was then referred to the mental health nurse consultant specialist who was also called as a witness by the prosecution. She gave the same diagnosis that the victim was 6-7 months pregnant when she examined her..
9. During the progress of the trial, a report on the victim by Dr Parkin, the consultant psychiatrist at the Tupua Tamasese Meaole Hospital, was produced to the Court and a copy made available to defence counsel. Following this report, the accused’s plea of not guilty was vacated and a plea of guilty was entered to the charges. Apparently, this was because the accused had denied that the victim was severely mentally disabled. This is clear from the pre–sentence report.

The victim

10. As earlier mentioned, the victim is severely intellectually disabled. In the report by the mental health nurse consultant specialist who examined the victim, she says:
    • “She [the victim] suffered severe epileptic seizures since she was 8 years old, and it has caused a permanent dysfunction to her brain. She lacks eye contact, delayed speech, mono-syallbic response and poor concentration
    • “In my expert professional opinion, [the victim] is mentally retarded-profound type and the condition is permanent”.
11. In the report by the consultant psychiatrist who also examined the victim, he says:
    • “[The victim] is clearly intellectually impaired. In my opinion, she meets the criteria specified in the Crimes Act and that specifically by reason of her intellectually impairment that:
      • “She is incapable of living an independent life as evidenced by her difficulties in shopping and care of small children, AND
        • “She is incapable of guarding herself against common physical dangers as evidenced by her answers to what she would do if the kitchen was on fire”.
12. Further on in his report, the consultant psychiatrist says:
    • “While the Crimes Act aims to protect the vulnerable, it also prevents a legal sex life to the severely intellectually impaired. During the review process of the new Act, I voiced this concern but it has not been incorporated into the new Act”.
13. The victim impact report notes that since the victim became pregnant, it seems her mental illness has become worse. She now tends to take off her clothes more and her family are afraid that what has already happened to her might happen again. As a result, the family is concerned about leaving the victim by herself.

The accused

14. As earlier mentioned, the accused was 18 years old at the time of the offending. He was attending college at Year 13 but he stopped going to school when this matter came to light. He is a first offender and the testimonials on him given to the probation service show that he had been a person of good character prior to the commission of these offences. Since the offences, there is nothing bad shown about his character.
15. The pre-sentence report shows that the accused’s grandfather has apologised to the family of the victim and the pulenu’u of the village who is related to the victim and the apologies were accepted. The accused was also fined $500 by the village council and his fine was paid in kind.

The aggravating and mitigating features

16. The aggravating features relating to this offending are: (a) the vulnerability of the victim as she is severely intellectually disabled, (b) the offending occurred not once but four times, (c) the victim became pregnant as a result of the offending, and (d) the apparent psychological impact of the offending on the victim. There is no mitigating feature in relation to the offending except to say that all incidents of sexual intercourse were consensual.
17. In relation to the accused as offender, there is no aggravating feature. But there mitigating features. These are: (a) the young age of the accused at the time of the offending, (b) his previous good character, (c) the apologies by the accused’s grandfather to the family of the victim and the pulenu’u of the village which were accepted, (d) the penalty that the accused’s family has paid to the village council, and (e) the guilty plea.

Discussion

18. Of the cases cited by the prosecution, I have not been able to find two of them on PacLII. The other three cases which I was able to find were all concerned with the charge of rape. In Police v Peo [2008] WSSC 107 the accused, a 28 year old male, was charged with the rape of a 21 year old female student who was intellectually handicapped. Apart from the age difference of 17 years, there was breach by the accused not only of his employer’s trust but also of the victim’s trust. I took a staring point of 10 years in that case. Having regard to the mitigating features personal to the accused, I arrived at end sentence of 9 years imprisonment.
19. In Police v Siaki [2010] WSSC 174, the accused, a 32 year old male, was charged with the rape of a 23 year old female who was a person with mental disabilities and special needs. The accused was a cousin of the victim and was staying with the victim’s family. Nelson J took a starting point of 10 years and after deductions for mitigating features personal to the accused, His Honour arrived at an end sentence of 7 years imprisonment.
20. In Police v Faafua [2010] WSSC 67, two accused were charged with the rape of a 13 year old female with mental disability. After taking into consideration all the aggravating and mitigating features, each accused was sentenced to 7 years imprisonment.
21. All of the above cases were concerned with the rape of a woman with mental disability. They were not, as in this case, concerned with the charge of having sexual connection with a person who is severely intellectually disabled. Those cases are therefore not of assistance in this case for the purpose of passing sentence.
22. Having regard to the aggravating features of the offending, I will take 2½ years as the starting point for sentence. I will deduct 12 months for such mitigating features as the young age of the accused, his previous good character, and the apologies by his grandfather to the family of the victim and the pulenu’u of the village which were accepted. That leaves 1½ years. I will deduct another 6 months for the fine the accused’s family has paid to the village council. That leaves 1 year. I will deduct 3 months for the guilty plea and that leaves 9 months. Here, I remind myself that the sentencing process is not an exact science and it is not to be applied in a purely mechanical fashion.

The result

23. The accused is sentenced to 9 months imprisonment on each of the four charges against him. All sentences are to be concurrent. Any time that the accused has already spent in custody pending the outcome of this matter is to be further deducted from his sentence.
    

CHIEF JUSTICE

Solicitor
Attorney General’s Office, Apia for prosecution
Fepulea’i and Roma Law Firm for accused