Police v Esera [2016] WSSC 164 (26 August 2016)

SUPREME COURT OF SAMOA
Police v Esera [2016] WSSC 164

Case name:	Police v Esera
Citation:	[2016] WSSC 164
Decision date:	26 August 2016
Parties:	POLICE and Siaosi Patrick ESERA male of Sataoa (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Mata Keli Tuatagaloa
On appeal from:
Order:	The accused is sentenced to 8 years and 7 months’ imprisonment for each offence to be served concurrently, less any time in custody.
Representation:	V Afoa for Prosecution H Wallwork for the Defendant
Catchwords:	Rape – occurred multiple times- defendant and victim related – victim a minor – sentencing bands – breach of trust – early guilty plea – custodial sentence
Words and phrases:
Legislation cited:	Crimes Ordinance 1961 Crimes Act 2013
Cases cited:	Key v Police [2013] WSCA03 R v AM [2010] NZCA114
Summary of decision:

SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

SIAOSI PATRICK ESERA, male of Sataoa
Defendant

Counsel:
V Afoa for Prosecution
H Wallwork for the Defendant

Sentence: 26 August 2016

SENTENCING OF JUSTICE TUATAGALOA

The charges:

1. The accused is to be sentenced on four counts of rape under the Crimes Ordinance 1961. This is because the offending took place in 2012 before the Crimes Act 2013 came into effect.
2. However, the penalty for rape of life imprisonment remains the same.

The offending: (summary of facts)

3. The accused does not dispute the summary of facts which basically says that the accused raped the victim on the following dates:
   1. 31 December 2011 – 01 January 2012;
   2. 31 September 2012 – 01 October 2012;
   3. 31 October 2012 – 01 November 2012;
   4. 30 November – 01 December 2012.
4. The accused is said to have committed the rapes when the victim went over to his house to play with his sister and there was no one around except for the accused.
5. The accused on the first rape covered the victim’s mouth with his hand to stop the victim from screaming. He also told the victim not to tell anyone or he would beat her up.

The Pre-sentence Report (PSR)

6. The pre-sentence report provides the Court with extra information about the accused that is not provided in the summary of facts. This report is compiled from what the accused tells probation. Such information would include the accused family background, educational background, whether the accused and/or his family have apologized to the victim, any village penalty that may have been imposed upon the accused and the accused version of what took place.
7. The accused in the pre-sentence report said that he only had sexual intercourse with the victim twice. However, he had confirmed the summary of facts by the prosecution which relates to four counts of rape and had pleaded guilty to four counts of rape.

The accused:

8. The accused was 18 years’ old at the time of the offending. He is now 22 years’ old. The victim is his second cousin and they were also neighbors at the village of Sataoa. He finished school at Year 12 and to date stays home and helps out with the daily chores and their family plantation.
9. There are written testimonials from his parents, church elder, pulenu’u (village mayor) and his rugby club who all spoke of him as responsible and obedient young man and an avid rugby player. He is involved with the village aumaga and his church youth group.
10. The parents spoke of how shocked they are and it is very hard for them to accept what the accused had done. The mother as a parent blames herself for failing to do her duties. The mother in her testimonial said the victim and her young children played together before the victim migrated to Australia.
11. The accused parents have apologised to the victim’s natural parents. The natural parents of the victim accepted the apology and have forgiven the defendant.

The victim:

12. The victim was five years’ old at the time of the offending. The victim has been adopted out and has moved to Australia with her adopted parents in 2014 where she is currently residing.
13. There is no medical report or victim impact report as to any physical and/or psychological harm to the victim. Given her very young age the court believes that there would be physical injuries to the victim’s genitalia from the defendant having full sexual intercourse with her. The court can only speculate on any psychological impact this offending will (or may already) have on this young victim.

The submissions by the prosecution:

14. The prosecution refers to sexual offending cases between a male relative and their victims. The victims in the cases referred to were also much younger than the accused. On the premise of those sentencing decisions and the presence of aggravating factors the prosecution submitted for a starting point within Band 4 in Key v Police.^[1]
15. The prosecution submitted the following aggravating factors of this offending:
    1. Breach of trust.
    2. Vulnerability of the victim.
    3. Age disparity.
    4. Not a “one-off” incident.
    5. Offending occurred around the family environment.
    6. Offending occurred over a long period of time.

The submissions by defence:

16. Ms Wallwork for the accused acknowledged the trauma and pain caused to the victim but said that the prosecution have overstated the aggravating factors of this offending. Counsel submitted that the offending was more opportunistic than pre-meditated. She acknowledged that violence is inherent in the offence of rape other than that there was no other violence associated with the commission of this offending. If there is, it would be of very low level.
17. Counsel submitted that the culpability of the offending falls within Band 1 (8-10 years) instead of Band 4 (19 – life imprisonment) as advocated by the prosecution. However, counsel asks that the court considers the young age of the accused at the time of the offending and that the accused in the last 4 years has not committed any other offences. Counsel submitted for a non-custodial sentence to allow the accused to be rehabilitated.
18. Defence counsel submitted the following as mitigating factors:
    1. The accused age at the time of the offending.
    2. The apology by his family to the victim’s natural parents.
    3. The accused is a first offender.
    4. The accused plea of guilty at first available opportunity. His plea of guilty is a sign of remorse and that his guilty plea means that the victim will not relive the whole ordeal from having to give evidence in a trial.

The aggravating factors:

1. I find the following factors to have been present in this offending:
   1. The victim was only five years’ old. There was a 13 year disparity in age between the accused who was 18 years’ old and the victim. The bigger the disparity and the younger the victim is the more serious the offending. The younger the victim the more vulnerable she is.
   2. Contrary to what counsel for the accused said in her submissions that there was no associated violence other than violent that is inherent in any sexual offending, I disagree. The accused by placing his hand over the victim’s mouth to stop her from screaming for help is an act of violence. The accused threatening the victim not to tell anyone or he will beat her up is an act of violence. These acts are associated violence of this offending.
   3. The accused did not rape the victim once but four (4) times.
   4. There was an obvious breach of trust. There is always an element of trust where people who are concerned are related. In this case, the accused and the victim are second cousins.
   5. Although there is no medical report of the impact of this offending upon this young victim. I cannot discount the fact that there is always a risk of some psychological harm that this young victim may (if not already) suffer.
   6. The first rape may have been opportunistic but the three (3) subsequent rapes were not. The accused actions were calculated because it occurred when no one else was at home except for himself.

The mitigating factors:

19. The following are mitigating factors:
    1. The accused was 18 years’ old at the time and still a teenager. He is now 22 years’ old.
    2. The accused is a first offender and the testimonials speak of him as an honest, hardworking and reliable young person. He was of good character prior to the offending.
    3. The accused parents apologised to the victim’s natural parents and was accepted. The problem with this apology is that the natural parents are no longer the victim’s parents. She has been adopted out and the acceptance of any apology is no longer that of the natural parents but that of the adopted parents.
    4. The accused pleaded guilty at the earliest opportunity.

Discussion:

20. The Court of Appeal in Key v Police said that the Bands must be read together with the sentencing guidelines in R v AM.^[2] The Court in R v AM on the sentencing guidelines made the following comment:

“However, it is trite but important to emphasize that what is required is an evaluation of all the circumstances. Listing relevant factors and setting out bands in the way we have done does not remove the need for judgment. A mechanistic approach is not appropriate.”

21. The Court of Appeal in setting the bands for rape in Samoa modified the bands in R v AM to make it more applicable or “jurisdiction specific.”
22. Defence counsel submitted that the offending was not pre-meditated but more opportunistic because the victim when she had gone over to the accused place to play with his younger sister there was no one else at home except for the accused. This is too simplistic of a reason. I accept that the first rape was opportunistic but I do not accept that the three subsequent rapes were opportunistic. The accused knew very well that the victim goes over to his house to play with his younger sister and so instead of telling her to go home because his younger sister is not home he raped her. The Court in R v AM referred at [46] in Key v Police said:

“Offenders who show predatory sexual behavior may be more likely to offend in an opportunistic manner. They should not be treated as lacking pre-meditation.”

I believe this to be the case with the accused and his offending.

23. The victim was only five years’ old. She was just a child. A child who is sexually violated at that age or younger is a heinous offending. In a Samoan family environment, children go over to their relatives’ houses to play with other children. The parents and family members let them go and play thinking they are with family and are therefore safe. The accused who is older is supposed to protect his younger cousins, especially female cousins but not to rape them.
24. It is noted that the village has not imposed any penalties or sanction upon this accused. Even if the victim is no longer living in the village, the village should still have imposed their usual penalties upon the accused because the offending took place in the village while the young victim was living there. The village in imposing penalties gives out the message that such behaviour is not tolerated by the village.
25. Although, the victim no longer lives in Samoa the accused needs to be held accountable for what he did and the harm done to the victim. He needs to know that such behaviour is not acceptable.
26. The Court looks at the totality of the accused behaviour in this offending. I find more than 3 aggravating factors present in this offending and they are considered very serious given the very young age of the victim. The accused culpability falls either in the top end of Band 2 or the bottom end of Band 3.
27. I take 15 years as starting point; less 2 years for his age at the time of the offending; less 1 year for being a first offender and 4 months for his parents’ apology. I give 25% discount for his early plea.
28. The accused is sentenced to 8 years and 7 months imprisonment for each offence to be served concurrently, less any time in custody.
    

JUSTICE TUATAGALOA

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^[1] Key v Police [2013] WSCA03
^[2] R v AM [2010] NZCA114