Police v Liuafi [2017] WSSC 122 (15 September 2017)

THE SUPREME COURT OF SAMOA
Police v Liuafi [2017] WSSC 122

Case name:	Police v Liuafi
Citation:	[2017] WSSC 122
Sentence date:	15 September 2017
Parties:	POLICE (Prosecution) v ISAIA LIUAFI male of Faleu Manono, Leauvaa and Talimatau Accused
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Leilani Tuala-Warren
On appeal from:
Order:	For the offence of rape, the defendant is convicted and sentenced to 15 years imprisonment. For each count of sexual connection with a child under 12 years old the defendant is convicted and sentenced to 12 years imprisonment. For the offence of abduction of a child under 16 years with intent to have sexual connection with that child, the defendant is convicted and sentenced to 7 years imprisonment. All sentences will be served concurrently so that the defendant will serve a total of 15 years imprisonment. Time spent in custody will be deducted.
Representation:	L Sio for Prosecution A Su’a for the accused
Catchwords:	Rape Sexual connection with a child under 12 years Abduction of a child under 16 years with intent to have sexual connection with that child
Words and phrases:
Legislation cited:	Crimes Act 2013 s.49(1)(a) & 52 (1) Crimes Act 2013 s.58(1) Crimes Act 2013 s.131
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

ISAIA LIUAFI male of Faleu Manono, Leauvaa and Talimatau
Accused

Counsel:
L Sio for Prosecution
A Su’a for the accused

Sentence: 15 September 2017

S E N T E N C E

THE NAME OF THE VICTIM IS PERMANENTLY SUPPRESSED.
The charges

1. The defendant appears for sentence on the following charges;
   • One (1) count of rape pursuant to sections 49(1)(a) and 52(1) of the Crimes Act 2013, which carries a maximum penalty of life imprisonment;
   • Three(3) counts of sexual connection with a child under 12 years pursuant to section 58(1) which each carries a maximum penalty of life imprisonment; and
   • One(1) count of abduction of a child under 16 years with intent to have sexual connection with that child, pursuant to section 131 of the Crimes Act 2013 which carries a maximum penalty of 10 years imprisonment.
     
2. He was found guilty of rape and three counts of sexual connection by a panel of assessors after a defended hearing on 3 August 2017. I found him guilty of abduction.

The offending

3. According to the evidence, on Thursday 8 May 2014, the victim finished school and hung around with some friends around the church in front of their school. When both her friends were picked up by their cars, the victim walked to the shop next door to buy something. When she walked out of the shop, she met a guy. He told her that her mother was waiting for her. She did not know the guy. He held her hand and they both walked down the road. They came across a side road to the left and she saw an abandoned house. He told her to go with him to the abandoned house and she said no. They kept walking down the side road. Then he told her to go into a togafai. She said no but he grabbed her hand,pulled her and strangled her neck. When they got to the togafai he sat her down and held her hands. He looked around for passing pedestrians. He opened his clothes then opened her school uniform and her shorts underneath. He was wearing dirty blue shorts to the knees and a singlet tied at the neck. He also had a yellowish ie. He spread this ie on the ground and lay the victim down on the ie.
4. He then lay on top of her and started kissing her on the mouth and kissing her neck. He spit on his hand, wet his penis then put his penis inside her vagina. She felt pain in her vagina at this time. He was moving forward and back on top of her. The victim was scared. When he took his penis out of her vagina, he licked her vagina and inserted his finger into her vagina. He told her to suck his penis and she said no. So he inserted his penis into her mouth and in her own words “pi I lau guku”. She felt water in her mouth. He then put his clothes back on while the victim put on her clothes. He asked her if he could take her packet of biscuits. So she gave him the packet of biscuits. She told him to leave first but he said they would leave together. She gave him $5 tala then he left. She started to cry and a passer-by found her and took her home.
5. Later she would identify the guy who did this to her from a montage of police photographs and from an identification parade conducted by Police. The guy is the defendant.

The defendant

6. The defendant is 23 years old. He was 21 years old at the time of the offending.
7. He is single and lives with his parents and siblings. There is no source of steady income for the family as his father works casually when required.
8. He left school in Year 11.
9. He is a member of the Methodist church and Counsel says that he is an active member attending both youth and choir groups.
10. He has previous convictions for burglary, theft and escape.

The victim

11. The victim is now 14 years old. She was 10 years old in 2014 when the offending occurred and was in year 5 .
12. She says that she had love bites all over her neck and chest after the offending.
13. She says in the victim impact report that she was afraid and wanted to escape but was too weak to do so. She knows that what the defendant did to her was unacceptable.
14. Her family is frustrated as this matter has taken so long. It happened in 2014. Her brothers in particular have wanted to take revenge.
15. The defendant did not apologise nor has any reconciliation taken place. He has not shown any remorse.

Aggravating features of the offending

16. This offending was premeditated, well planned and executed. The defendant targeted this young victim who was by herself. He enticed her into coming with him by telling her a lie that her mother was waiting for her. He then led her to an isolated and unpopulated area, off the main road, down a side road, where he could be alone with her.
17. This was in essence an abduction to enable the defendant to carry out the sexual violation. The victim was not free to leave as he held her hand from in front of the shop and then pulled her hand and strangled her neck when he took her into the togafai.
18. The victim was vulnerable given her young age of 10 years old. She was trusting and went along with the defendant which shows that she lacked the understanding at her age to recognise the predicament she was in. This vulnerability stems from the fact that she was naïve and had not attained the maturity to recognise danger and be able to defend herself.
19. The defencelessness of the victim in this case is particularly striking. In accordance with section 8(2) Sentencing Act 2016, the Court must take into account the defencelessness of the victim, as an aggravating factor when sentencing an defendant in a case involving violence against a person under the age of 18 years. She wanted to escape but was too weak to do so.
20. The extent of the harm to the victim is taken into account. She says she was afraid. This is a young girl of 10 years old. No doubt she would have been terrified, not quite understanding what was happening. It was obvious during the giving of her evidence during the hearing that her memories of what happened are still quite vivid. This incident will stay with her for the rest of her life. This is also a case of unprotected sex which in itself is risky for the victim. Fortunately she did not contract a sexually transmitted disease. This was a serious violation of the victim’s sexual autonomy. She was a virgin and she was violated in a most cruel way.
21. Rape is an inherently violent act, and this case is no exception. Not only did the defendant grab the victim’s hand and strangle her neck when he pulled her into the togafai, he raped the victim, and he then performed vulgar acts on the victim which continued to cause her pain, in particular inserting his finger into her vagina and inserting his penis into her mouth and peeing in her mouth. Perhaps he had ejaculated but that is not evidence from the victim. The victim would not know at her age what the water or liquid in her mouth was. Either way, this is disturbing behaviour aimed at demeaning this young victim. I consider these additional acts as acts of particular cruelty in the commission of the offence.

Mitigating Factors

22. I take into account in mitigation the personal circumstances of the defendant being a young man at the time of 21 years. This is pursuant to section 7(2)(a) Sentencing Act 2016 where the age of the defendant must be taken into account where applicable.
23. This is his first offence in terms of sexual offending. He has previous offences against the rights of property, specifically burglary and theft which I accept are not of the same nature. However he has been broken the law before making the plea for him to be considered a first offender inappropriate. But neither will I consider this as an aggravating feature relating to the defendant.
24. Defence Counsel has submitted that the defendant has been living the ‘reality of the poor grassroots community within Samoa waking up hungry and sleeping hungry’. Whilst this is probably true, it is difficult to see how this provides an explanation for his offending. It is useful only as background information.

Discussion

25. This is the rape of a young school girl by a complete stranger. A stranger who held her hand and led her away after school. But whether it is a case of stranger rape or acquaintance rape, rape carries the highest penalty available under the criminal law and that is imprisonment for life.
    
26. Vaai J in Police v Pule[2015] WSSC 76(31 July 2015) said;

Average sentence lengths for rape have been increasing. But so too, as the prosecution counsel correctly submitted, is the rise in sexual offending. This disturbing prevalence in sexual abuse must be met with stern measures to reflect society’s revulsion and denunciation.

27. This case is no exception and the Court today will take a stern stance against this offending.
28. Vaai J further said in Police v Pauesi (9 May 2008) ;

In considering the sentence for sexual offences, particularly rape, the primary consideration is a term of imprisonment. There should be an element of deterrence to reflect the gravity of the offence to punish the offender, to deter the offender and to deter other like-minded people. The sentence is also to convey condemnation by society of such criminal conduct.

29. Deterrence will be of paramount consideration in today’s sentence. This targeted and planned sexual violation of a child is unacceptable. There is a significant need for deterrence, to deter the offender and to deter other like-minded people from targeting innocent young school aged children who cannot defend themselves and have not yet acquired the maturity to fully comprehend and appreciate risky and/or unsafe situations.
30. There is a need to hold the defendant accountable for the harm done to the victim, to promote in him a sense of responsibility for, and an acknowledgment of that harm, and to provide for the interests of the victim. The effects of this offending on the victim will no doubt last a lifetime. What happened in this case is something that no 10 year old child or any child should have to endure. Childhood is a time of innocence and this defendant has robbed this child of that innocence.
31. The protection of the public, in particular our young children is also an important consideration in today’s sentencing. This is a case of immense public interest for the reason that this victim is a young school girl picked up by a complete stranger after school. This indicates a need for awareness around stranger danger in homes and schools.
32. Prosecution has submitted that a starting point of 18 years imprisonment is appropriate. Defence Counsel has recommended that 9 years is an appropriate starting point.
33. Because of the inevitability that the defendant will be imprisoned, I turn now to identify the starting point and in determining that starting point, I am guided by the New Zealand Court of Appeal case of R v AM (CA 27/2009, CA 32/2009). The Court of Appeal set sentencing bands for offending involving sexual violation.
34. The case of Key v Police [2013] WSCA(28 June 2013) is to be read in conjunction with R v AM. In Key v Police the Samoa Court of Appeal issued a guideline decision relating to rape sentences and reminded us that the reasoning in that case (R v AM) and decisions reached relating to rape sentences, except for the actual term of imprisonment, are incorporated into and form part of the decision in Key v Police. Some uplift to the bands in R v AM was appropriate to reflect the greater maximum sentence in Samoa.
35. The rape bands are;

Rape band one: 8 – 10 years (Appropriate where the offending is at the lower end and where there is an absence of aggravating features or their presence is very limited);

Rape band two: 9 – 15 years (Where violence and premeditation are moderate);

Rape band three: 14 – 20 years (Offending where there are aggravating features at a relatively serious level); and

Rape band four: 19 years to life (As well as the aggravating features in Band 3 it is likely to consist of multiple offending over considerable time. Repeat family offending would fall into this band).

36. As stated in R v AM and reiterated in Key v Police, I bear in mind that ‘...what is required is an evaluation of all the circumstances” and “a mechanistic view is not appropriate”.
37. In assessing culpability to determine a starting point in the case before me now, I take into account the young age and vulnerability of the victim, the premeditated and calculated way in which the defendant went about lying to her and abducting her, the rape and the particular cruelty of the acts he did to her for his own sexual satisfaction, and the impacts of this offending on the victim.
38. I assess the culpability of the defendant at a serious level as there are aggravating features at a relatively serious level. This is not a case which I consider falls within Band 2 where violence and premeditation are moderate.
39. I consider the totality of offending where I am imposing sentences of imprisonment for two or more offences so that the individual sentences reflect the seriousness of each offence. (s 56 Sentencing Act 2016).
40. Having therefore considered all the circumstances, and in particular having regard to the aggravating features relating to this offending (there being no mitigating features of the offending), I place this offending in the upper range of rape band three (14-20 years).
41. I take 18 years imprisonment as the starting point for sentence. I deduct 3 years for his personal circumstances in particular his age. This is because he was 21 years old at the time of the offending.

The result

42. For the offence of rape, the defendant is convicted and sentenced to 15 years imprisonment.
43. For each count of sexual connection with a child under 12 years old the defendant is convicted and sentenced to 12 years imprisonment.
44. For the offence of abduction of a child under 16 years with intent to have sexual connection with that child, the defendant is convicted and sentenced to 7 years imprisonment.
45. All sentences will be served concurrently so that the defendant will serve a total of 15 years imprisonment.
46. Time spent in custody will be deducted.
47. A useful suggestion has been put forward by Mr Sua in terms of proper counselling for the defendant. I agree with Counsel and I urge the Prisons and Corrections Service to provide the proper and relevant counselling to this young man whilst in prison. This I suggest is in line with the guiding principles of the Prisons and Corrections Act 2013, in particular, section 3(f) where all persons carrying out a duty must at all times in treating convicted prisoners encourage their self-respect and a sense of personal responsibility so as to re-build their morale and to instil in them habits of good citizenship and hard work with a view to them leading a good and useful life after their discharge.
48. Finally in terms of orders, there will be an order permanently suppressing or prohibiting the publication of the name of the victim and her family. The suppression order does not relate to the defendant.

Addendum

49. It is in the interests of all school children that the Ministry of Education Sports and Culture be given a copy of this decision so that they can consider the possibility of an awareness within schools around stranger danger and/or the reinforcement of the safety of school children by policies implemented within schools which ensure that children leave their school compound/s under the custody of an appropriate person/s.

JUSTICE TAFAOIMALO LEILANI TUALA-WARREN