Police v Savea [2017] WSSC 133 (14 September 2017)

THE SUPREME COURT OF SAMOA
Police v Savea [2017] WSSC 133

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Case name:	Police v Savea
Citation:	[2017] WSSC 133
Sentence date:	14 September 2017
Parties:	POLICE (Prosecution) v TASENI SAVEA male of Falefa 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:
Representation:	O Tagaloa for Prosecution K Koria for the accused
Catchwords:	Rape
Legislation cited:	Crimes Act 2013 ss.49(1)(a) & 52 (1)
Cases cited:	Key v Police [2013] WSCA(28 June 2013)
	R v AM (CA 27/2009, CA 32/2009). R v Hon-Wallace (CA #160;49/79, R v Peachey (CA 92/01,uly 2001
Sy of ion:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

TASENI LAVEA male of Falefa
Accused

Counsel:
O Tagaloa for Prosecution
K Koria for the accused

Sentence: 14 September 2017

S E N T E N C E

THE NAME OF THE VICTIM IS SUPPRESSED.
The charge

1. The accused appears for sentence on one charge of Rape pursuant to ss.49(1)(a) & 52(1) of the Crimes Act 2013, which carries a maximum penalty of life imprisonment.
2. He was found guilty of the charge after a defended hearing before assessors on 15 June 2017.

The offending

3. According to the evidence, the accused and the victim’s older sister were in a relationship. On 17 July 2016, the accused after drinking went to the home of the victim and called the victim’s sister from outside her bedroom window. The victim was sleeping in her older sister’s room. The accused had been to this room before with the victim’s older sister. When he did not get a reply, he climbed through the window and approached the victim in bed. He hugged the victim from behind and then proceeded to undress her. The victim removed his hands but he was too strong. He had sexual intercourse with her without her consent. He then fell asleep.
4. The father of the victim found the accused in the room and beat him away with an ax handle.
5. The victim was 14 years old at the time.

The accused

6. As shown in the pre-sentence report, the accused is 28 years old, single and lives at Vaitele Uta as a result of his bail conditions. He is the eldest of six children and prior to this offending lived with his parents.
7. He completed his secondary schooling and was in the National University of Samoa Institute of Technology. However he opted to leave university to find employment to help his family. He then began working at M & L Customs Agency where he still works earning $200.00 per week. He has been working there for 8 years.
8. His parents told Probation that the accused is reliable and trustworthy. They say this offending is out of character as he is obedient and supportive.
9. There are written testimonials from his employer, priest and village mayor. His employer says that the accused is reliable, committed and honest. The village mayor says he is a dedicated member of the village participating in the youth activities of the church. He confirms the village penalty paid by the accused of $4000.00. His priest confirms that the accused is a member of the Catholic Church at Falefa.
10. The accused says of the offending that on the day of the offending, he had drank a large bottle of vodka with three friends. He says he went to his girlfriend’s house and assumed the girl lying on the bed was his girlfriend. He had sex with her without realising that it was his girlfriend’s younger sister.
11. He expressed his remorse for his actions. His parents have apologised to the victim and her parents.
12. He is a first offender.

The victim

13. The victim impact report given to the Court says that the victim is 14 years old.
14. She says that this was the first time she had experienced something like this and she cried because her vagina hurt from the pain that night.
15. She says she was scared that night and wanted to tell her father straight away but was afraid her father would beat her.
16. At school she has been affected as the other students talk about her and she has been embarrassed.
17. Now she has found the strength to move on and the incident no longer bothers her. She is feeling normal and everything is going well for her.
18. She confirms that the parents of the accused approached her parents to ask for forgiveness. They accepted the apology.

Aggravating features of the offending

19. The aggravating features of this offending is firstly, the age of the victim. She was 14 years old. The accused is 28 years old. The younger the victim of a sexual offence the greater the need for protection: This proposition was stated by the New Zealand Court of Appeal in R v Hamiltonace (CA #160;49/79, 14 Augus9, Wood Woodhouse, Richardson and Somers JJ) to be so self-evident as to need no authority. In R v Peachey (CA 92/01, 17 2001, Gault, Panc Panckhurst and Potter JJ), another New Zd Court of Appeal decision,sion, it was stated that sexual offending against unde children is consistently rtly regarded as more serious than similar offending against adults. Young persons were more vulnerable and the law provided for their need for greater protection.
20. The age discrepancy of 14 years between the victim and the accused is considered an aggravating factor.
21. In carrying out this offence of rape, the accused unlawfully entered the victim’s home. This is an aggravating factor as the victim’s home is where she should be safe and protected. The young victim was sleeping in the safety of her own home.
22. The physical and psychological impact on the victim is taken into account as an aggravating feature. The victim was in pain on the night in question. She was embarrassed. Fortunately she says that everything is going well for her now.

Mitigating Factors

23. I take into account in mitigation the response by the parents of the accused to the offending. Their apology to the victim and the parents of the victim is taken into account. (section 9 (c) Sentencing Act 2016).
24. I take into account the village penalty paid to the village Council. Section 8 of the Village Fono Act 1990 provides that the Court shall take into account in mitigation of sentence, the punishment imposed by the Village Fono for the same conduct for which the offender is convicted. This is further reinforced by section 7 of the Community Justice Act 2008 which provides that the Court must in determining the nature of the penalty to be imposed, take into account any compensation or reparation made or due by the offender under Samoan custom and tradition.
25. I take into account the testimonials in his favour. He was apart from this offending, a person of good character with a steady job.
26. I take into account his remorse, expressed to Probation and through Defence Counsel today.
27. I do not take into account in mitigation that he was at the time of the offending , affected by the voluntary consumption of alcohol.

Discussion

28. The charge of rape carries the highest penalty available under the criminal law and that is imprisonment for life. There is no doubt today that the sentence for the accused will be a custodial one. The offending by the accused was fuelled by alcohol affecting his judgment. Whilst unfortunate, this is no excuse. He must be held accountable for the harm he did to the victim.
29. Being intoxicated is never an excuse nor is it a mitigating factor for criminal behaviour. The choice by the accused to consume alcohol means that he must face all the consequences of that choice. Members of the judiciary have commented numerous times on the issue of alcohol consumption and committing crime. However this has not lessened the influx of criminal behaviour fuelled by alcohol.
30. Both Prosecution and Defence Counsel have submitted that a starting point of 8 years imprisonment is appropriate.
31. 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.
32. The case of Key v Police [2013] WSCA(28 June 2013) is to be read in conjunction with R v AM. The Samoa Court of Appeal in the Key case 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.
33. 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).

34. In assessing culpability to determine a starting point in the case before me now, I take into account the age of the victim, being a child in her early teens, the unlawful entry into her home by the accused and the effect on the victim. There is an age disparity of 14 years between the victim and the accused.
35. Rape is an inherently violent act. Fortunately, there was a no additional physical violence in this case. The accused had believed that the victim was his girlfriend, the victim’s older sister. He fell asleep after the act, posing no further threat to the victim.
36. As stated in R v AM and adopted 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. Having therefore considered all the circumstances, and in particular having regard to the aggravating features relating to this offending, I place this offending in middle of rape band one (8-10 years) where presence of aggravating features is limited. A young victim is involved making the lower end of Rape Band one i.e 8 years inappropriate.
38. I therefore take 9 years imprisonment as the starting point for sentence. I deduct 1 year for the penalty paid to the village council. I deduct 1 year for the apology by the parents of the accused to the victim and her family. I take away 6 months for his remorse and 6 months for his previous good character as in the testimonials.
39. In accordance with section 7(4) Sentencing Act 2016 which allows the Court to take into account any other mitigating factor that it thinks fit, I take into account in mitigation that the accused has never denied having sexual intercourse with the victim. He pleaded guilty to one charge of sexual connection with a young person under 16 years which was withdrawn and dismissed when he was found guilty of rape. He raised the defence of honest belief which he was entitled to do. I deduct 10 months for this. I also deduct 6 months for his two young children to whom he provides maintenance of $100 each week. They will now be without this financial assistance.

The result

40. For the offence of rape, the accused is convicted and sentenced to 4 years and 8 months imprisonment.
41. Finally in terms of orders, there will be an order permanently suppressing or prohibiting the publication of the name of the victim and any details that might identify her. The suppression order does not relate to the defendant.

JUSTICE TAFAOIMALO LEILANI TUALA-WARREN