Police v Omeka [2016] WSSC 162 (27 June 2016)

IN THE SUPREME COURT OF SAMOA
Police v Omeka [2016] WSSC 162

Case name:	Police v Omeka
Citation:	[2016] WSSC 162
Decision date:	27 June 2016
Parties:	POLICE (Prosecution) LINO OMEKA male of Malae Faga. (Defendant)
Hearing date(s):
File number(s):	S1031/16, S1034/16
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	There are no other deductions that can be made to your sentences. On the charge of rape you will be convicted and sentenced to 8 years in prison. O le taimi uma lea sa e nofo taofia ai e fa’atalitali le fa’aiuga o lau mataupu e tatau ona toese mai i le 8 tausaga lea na fa’ataatia atu o lou fa’asalaga.
Representation:	A Tumua for prosecution Defendant unrepresented
Catchwords:	-
Words and phrases:
Legislation cited:
Cases cited:	Key [2013] WSCA 3
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

LINO OMEKA male of Malae Faga.
Defendant

Counsel: A Tumua for prosecution
Defendant unrepresented

Sentence: 27 June 2016

SENTENCE

1. There are two charges facing the defendant: one is that at Tuasivi on the 04^th of April 2016, he did rape the complainant. The second is that same place, same date, he did assault the same complainant.
2. The police summary of facts which has been admitted by the defendant says he is a 33 year old from the village of Faga employed as a baker at Tuasivi. He works together with the husband of the complainant.
3. The complainant is a 23 year old female and works as a house girl for the same person who employs her husband and the defendant. The defendant the complainant and her husband live in a faleo’o behind their employers place of work. As is customary in cases of sexual complaint the details and anything that may serve to identify the complainant are suppressed from publication.
4. The summary says that in the early morning hours of 04 April 2016 between 3:00 and 4:00 a.m the complainant was asleep inside her mosquito net in the faleo’o. Her husband by that time had already left for work, she was alone in the house. The defendant snuck into the faleo’o and into the mosquito net and began kissing the complainant. This woke the complainant up and she felt someone on top of her wearing only a T-shirt. The summary says she could feel his private part touching her body. She knew it was not her husband as she could smell the person on top of her had a different kind of gel in his hair.
5. The summary goes on to say the defendant pressed her hands down and used his other hand to separate her legs. She tried to scream out her husbands name but the defendant told her not to scream because no one can hear her. The defendant then forcefully inserted his penis into her vagina and without her consent had sex with her. When the defendant was finished he left and the complaint got up and had a shower.
6. After her shower she went to the front of the property where her husband was working and call out to him. Her husband came out from the work place and she told him what had happened. The matter was referred to the police and the defendant was apprehended and charged accordingly.
7. The defendant has pleaded guilty to both charges, the charge of rape and the count of assault. As the charge of rape necessary includes a sexual assault, I dismiss the assault charge because it is superfluous.
8. Rape has a maximum by law of life in prison. In this country sentencing for rape is governed by the sentencing bands laid down by the Court of Appeal in the case of Key [2013] WSCA 3. That provides four bands for rape sentencing:
   • (a) Band One - 8 to10 years where the offending is at the lower end and where there is an absence of aggravating features or their presence is very limited;
   • (b) Band Two - 9 to15 years where violence and premeditation are moderate;
   • (c) Band Three - 14 to 20 years where there are aggravating features at a relatively serious level;
   • (d) Band Four - 19 years to life in prison for cases of multiple offending over a considerable period of time and for cases of repeat family offending
9. These are the guidelines laid down by the Court of Appeal but of course every case is different and where a particular rape fits in to a particular band is a matter that would vary from case to case, and depends very much on the circumstances of each case.
10. In this case in terms of aggravating factors, it is clear that what happened here is Lino waited until the womans husband had gone to work. As a co-worker of the complainants husband he well knew the husbands working hours. Once the husband was absent from the faleo’o he went into the house between 3:00 and 4:00 a.m in the morning. The defendants intent was clear because he entered the womans mosquito net wearing just a T-shirt.
11. His actions were preplanned and premeditated. The rape was carried out with a moderate degree of violence. There is a 10 year age gap between the defendant and the complainant. And the summary says on entering the mosquito net he laid on top of her, pinned her hands and used his other hand to separate her legs. She tried to scream but he told her not to, because no one can hear her.
12. In her victim impact report she says she was very scared when she was being raped. Because she was worried the defendant might do more harm to her other than just raping her. It also says when she tried to call out for her husband, the defendant blocked her mouth and told her to shut up. The summary also states the defendant forcefully inserted his penis into the victims vagina and then had sex with her. Lino told the probation office it was consensual sex. But I reject that because the defendant has pleaded guilty to a charge of rape which is sex without the consent of a victim. It is also rape if it is done with the victims consent, but that consent was given because of fear or threats. In her victim impact report, the victim confirms an absence of consent.
13. It is also important that this rape occurred in the place of residence of the victim and her husband. This was their home for the time being. The victim was entitled to feel safe, secure and to sleep in her own house however temporary such accommodation was. The summary says she was in fact sleeping when the defendant entered her mosquito net. The palagis call this a home invasion type of offending. We Samoans call it “moetolo”. It is frowned upon by our culture and there are many cases of this kind that have come before the court. The courts sentence must denounce such behaviour and send the message to the defendant and all young men of the seriousness with which the law regards such behaviour.
14. Taking all these matter into consideration Lino I am of the view this case falls within the B2 band of Key but at the mid to lower point thereof. Band Two is 9 to15 years but I will take 12 years as the appropriate start point for this offending. There are deductions that should be made from that start point which I will now do on your behalf.
15. For your punishment by your village and the penalty they imposed which the law mandates must be taken into account I will deduct one (1) year from the 12 years, leaves a balance of 11 years. You have a good background of service to your aiga, the pre-sentence report confirms that. You also have a clean record. For that I deduct 6 months, leaves a balance of 10½ years.
16. You made mention to the probation office Lino of an apology but the victim impact report filed by the prosecution office says there has been no reconciliation, and it does not mention any apology being made to the victim or to the victims family. In the absence of that confirmation I cannot give you credit for any apology.
17. What you are entitled to credit for Lino is your guilty plea. Because that has saved the limited time and resources of the court and also the need for the complainant to relive this unpleasant experience. I will deduct one-quarter of the remaining balance of your sentence to reflect that guilty plea that is a period of 2½ years, leaves a balance of 8 years.
18. There are no other deductions that can be made to your sentences. On the charge of rape you will be convicted and sentenced to 8 years in prison. O le taimi uma lea sa e nofo taofia ai e fa’atalitali le fa’aiuga o lau mataupu e tatau ona toese mai i le 8 tausaga lea na fa’ataatia atu o lou fa’asalaga.
    

JUSTICE NELSON