Police v Ale [2015] WSSC 77 (3 August 2015)

IN THE SUPREME COURT OF SAMOA
Police v Ale [2015] WSSC 77

Case name:	Police v Ale
Citation:	[2015] WSSC 77
Decision date:	3 August 2015
Parties:	Police (prosecution) Itulagi Ale male of Aleisa and Sapulu Faleasiu (defendant)
Hearing date(s):	-
File number(s):	S3849/14, S3851/14 and S3853/14
Jurisdiction:	Criminal
Place of delivery:	Supreme Court, Mulinuu
Judge(s):	Justice Vaai
On appeal from:
Order:	He is sentenced to 8 years imprisonment for rape charge less any time he spent in custody. For the two charges of sexual connection, he is sentenced to 4 years imprisonment on each charge to be served concurrently with the rape charge.
Representation:	O Tagaloa for prosecution S Leung Wai for defendant
Catchwords:	Rape – sexual connection – aggravating features – previous good record – guilty plea – imprisonment sentenced
Words and phrases:
Legislation cited:
Cases cited:	Key v Police
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:
ITULAGI ALE male of Aleisa and Sapulu Faleasiu
Defendant

Counsel: O Tagaloa for prosecution
S Leung Wai for defendant

Sentence: 3 August 2015

S E N T E N C E

1. The accused pleaded guilty to one count of rape and two counts of sexual connection. He is 46 years of age, has a wife and 10 children. One of his daughters aged 14 is the victim of his offending. The other victim, a neighbour of the accused is 12 years of age.
2. The rape charge concerned the 12 year old girl who went to the shop at Aleisa to meet up with her younger sister. As she walked passed the house of the accused, the accused called her to come to his house. She did go over because the accused threatened to beat her if she did not. Upon arrival the accused undressed her, fondled her genitals with his hands and tongue, laid her down, spread her legs and inserted his penis.
3. On another day subsequent to the rape the accused called from his plantation to the same girl to come over. She did and he pulled her into the bushes, undressed her, sucked her breasts and tried to put his penis inside her vagina but the victim refused. He then spread her legs, lifted them up and inserted his penis.
4. The third charge against the accused relates to sexual connection with his own biological daughter who was 14 years old at the time. It was during the night while the daughter was asleep that she felt someone sucking her breasts and touching and probing her genitals. She sat up and saw her own father, the accused. She asked the accused why? The accused replied because I love you. Naturally she started to cry. The accused begged her not to tell anyone.
   

Submissions by Counsel for accused

5. Mr Leung Wai conceded that an imprisonment sentence for the rape charge is inevitable, he also conceded that the offending falls within band 2 as set out in Key v Police, but he contended the commencement point of sentence should be around 10 years not at the higher end of band 2 as submitted by the prosecution.

Prosecution’s Submissions

6. It was contended by counsel for the prosecution that given the aggravating features involved in the offending the culpability of the offender properly places his offending at the top end of band 2 and 14 years should be adopted as the appropriate starting point for the crime of rape.
7. As for the other offences of sexual connection with a young person, as well as sexual connection with his own daughter, starting points of 3 years and 4 years respectively were suggested.

Discussion

8. In identifying a starting which appropriately reflects the intrinsic seriousness of the offending I consider the young age of the victim, her vulnerability and the threat of violence to be the most serious aggravating features of the offending in relation to the charge of rape and having sexual connection with the same 12 year old girl. In relation to the charge of having sexual connection with his biological daughter, the young age of the victim and breach of trust are the most serious aggravating features. There is no suggestion in the summary that the offence of rape was premeditated or planned.
9. The violence attached to the rape exceeded that inherent in such offending but it cannot be classified as very serious compared to other cases of rape which have been dealt with. The victims impact report stated that the victim felt pain in her stomach/abdomen during the rape. She was also sad and angry with the accused. Other than the pain, no significant physical or psychological harm appears to have been inflicted on the 12 year old victim.
10. As for the accused’s daughter the accused’s criminal conduct appears to have posed significant mental and psychological impact on the victim.
11. Given the moderate level of violence and other aggravating features in the rape charge I consider the accused’s offending falls within the lower end of band two and adopt 11 years as the appropriate starting point. For his guilty plea and previous good record I deduct 3 years. He is sentenced to 8 years imprisonment less any time he spent in custody.
    
12. For the two charges of sexual connection, he is sentenced to 4 years imprisonment on each charge to be served concurrently with the rape charge.
    

JUSTICE VAAI