Police v Masina [2017] WSSC 143 (24 November 2017)

IN THE SUPREME COURT OF SAMOA
Police v Masina [2017] WSSC 143

Case name:	Police v Masina
Citation:	[2017] WSSC 143
Decision date:	24 November 2017
Parties:	POLICE (Informant) and EFESO PATI MASINA male of Falefa & Asau (Defendant)
Hearing date(s):	01-03 & 06 November 2017
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Mata Keli Tuatagaloa
On appeal from:
Order:	For the charge of rape (x1), the defendant is convicted and sentenced to 13 years’ imprisonment; for the charge of unlawful sexual connection with a girl under 16 years’ old (x5), the defendant is convicted and sentenced to 6 years imprisonment for each count. All sentences to be served concurrently.
Representation:	O Tagaloa for Prosecution A Su’a for the Accused
Catchwords:	Rape – sexual violation – unlawful sexual connection with a minor – teacher/student relationship – sentencing bands – custodial sentence – 26 year age disparity – occurred multiple times – vulnerability (victim) – pre-meditation – first offender – village penalty imposed
Words and phrases:
Legislation cited:	Crimes Act 2013 ss. 49(1)(a); 52(1); 59(1)
Cases cited:	Key v Police [2013] WSCA (28 June 2013). R v AM (CA 27/2009).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

EFESO PATI MASINA, male of Falefa & Asau
Accused

Counsel:
O Tagaloa for Prosecution
A Su’a for the Accused

Sentence: 24 November 2017

SENTENCING OF TUATAGALOA J

The charge:

1. The accused appears for sentence after being found guilty by assessors on one count of sexual violation by rape pursuant to section 49(1)(a) of the Crimes Act 2013, which section. 52(1) provides for a penalty of maximum life imprisonment.
2. The accused is also to be sentenced on five counts of unlawful sexual connection that I (judge alone) found him guilty beyond reasonable doubt with a girl under 16 years old pursuant to section 59(1) of the Crimes Act 2013 which penalty is maximum 10 years’ imprisonment for each offence.
3. The evidence for the above offending of rape and unlawful sexual connection were all heard together during the assessor trial.

The background:

4. The victim was 13 years old at the time of the offending and was in Year 8 at Sauniatu School.
5. The accused was the victim’s Social Studies and Samoan teacher. He was also the Form teacher for Year 6.

The offending:

(i) Rape (x1)

6. According to the evidence, sometime in July 2016 the accused told the victim to wait for him in the classroom after school. She went and waited for him, the accused came and asked her, “Pe mafai ga fai se la mea” she told him “Leai.” She went to leave but the accused locked the door, pulled her towards him in an embrace, then pushed her against the wall and then the victim said he did the following: “Tago eto solo lou ua, ma tago ai ai solo lo’u tino, fai mai ou te taoto i lalo o le foloa, ou fai atu e leai, tago loa ia faataoto au i le foloa, tago tatala lo’u ofuvae, momono lana pi i la’u pi, na ou tafiti solo ma ou fai atu ua lava na, ua tiga. Uma loa fai mai ou te alu loa e fa’atali la’u pasi.” This offending took place at the back of the classroom where the vicitm marked ‘1’ on Photo 8 of Exhibit P1.

(ii) Sexual Offending (x5)

7. The accused committed the sexual offending in his classroom after school as follows:
   • August 2016 (x2)
   • October 2016 (x2)
   • November 2016 (x1)

The accused:

8. The accused from the information was 39 years old at the time of the offending. He is married with children and lives at Falefa.

The victim:

9. The victim is now 14 years old and no longer attends school. Her mother says that she does not want to go back to school because she is ashamed of what happened.

Aggravating features of the offending:

10. I accept the following as aggravating features of these offending:
    • (i) The victim was 13 years old. The age of the victim goes to the gravity of the offending. The younger the victim is the more vulnerable she is. The law recognizes the need for greater protection of young victims from sexual offending and provide for a penalty of maximum life imprisonment for rape and not more than 10 years for unlawful sexual connection with girls under 16 years old.
    • (ii) The age difference of 26 years. The accused was 39 years old, married with children. He is an adult, far more experienced in life as opposed to the victim. The vast age difference also shows how vulnerable the victim is to the accused.
    • (iii) The abuse of position by the accused. He was a teacher entrusted by families with their children. He has gravely breached that trust and had abused his position as a teacher by sexually violating the victim who was a student.
    • (iv) The consequences of the accused offending. This has resulted in the victim no longer wanting to go back to school. The accused offending has victimized the victim by making her feel ashamed as if it was her fault that it happened instead of that of the accused.
    • (v) The offending was pre-meditated. The accused always tells the victim to wait for him in the classroom after school and it was not for school work.
    • (vi) The inherent nature of violence associated with rape is not forgotten. However, there was minimal associated violence in relation to the rape in that the accused locked the classroom door preventing the victim from leaving, pulling her towards him, then putting her against the wall before he then raped her.
    • (vii) There is no doubt there will be psychological impact on this victim that may take a long time for her to forget. The court can only hope that she will be able to get over it and be able to lead a normal life.

Mitigating factors:

11. The only mitigating factors I accept in favour of the accused are:
    • (i) He is of previous good character. The various written testimonials provided confirm to the Court that you are indeed a person of previous good character. The Court will take it into account towards your being a first offender.
    • (ii) His personal circumstances that he is married with children.
    • (iii) The village penalty imposed upon the accused. Such village penalty is (in my view) sanction such behavior in the villages or for those living in the villages from committing such offences. Village penalties (in my view) in a way are a measure of deterrence.

Discussion:

12. Sexual offending against young girls is very prevalent in our society. There is a greater need for deterrence with the utmost consideration for the protection of young girls from such offending. Imprisonment therefore is the primary focus for deterrence.
13. The only question for the accused is how long he is going to prison for. The answer lies in the circumstances of his offending.
14. The sentencing bands for rape is provided for in Key v Police.^[1] These bands are to be read together with the guidelines in R v AM.^[2]
15. The Prosecution has submitted a starting point of 16 years for rape but having regard to the five counts of unlawful sexual intercourse a starting point of 18 years is appropriate. The starting point proposed by the prosecution falls within Band 3 of Key.
16. The defence submitted for a starting point of 10 or 11 years as appropriate which starting point falls within Band 2.
17. The accused culpability level is crucial in determining the appropriate starting point. For the accused I assess his culpability to be very high when I take into account the age of the victim, vulnerability of the victim, the disparity in age, the consequences of the offending on the victim, premeditation, abuse of position of authority by the accused as a teacher to commit the offending.
18. I take the totality approach with regards to the offences committed that the accused has been found guilty of and take the rape charge as the leading offence.

Rape:

19. The starting point of 15 years in the top end of Band 2 (and low end of Band 3) is considered appropriate.
20. I deduct 1 year for the accused previous good character; less 6 months for his wife and children who no doubt would have suffered humiliation when he was found guilty and will have to live with what the accused has done and a further 6 months for the penalty imposed by the village.
21. The end sentence for rape is 13 years imprisonment.

Unlawful Sexual Connection:

22. For the five counts of unlawful sexual connection committed as follows:
    • (i) August 2016: twice
    • (ii) October 2016: twice
    • (iii) November 2016: once
23. For each count of unlawful sexual connection with a girl under 16 years old the accused is convicted and sentenced to 6 years imprisonment for each count.
24. All sentences to be served concurrently.
    

JUSTICE TUATAGALOA

---

^[1] Key v Police [2013] WSCA (28 June 2013).
^[2] R v AM (CA 27/2009).