Police v Iakopo [2017] WSSC 162 (22 November 2017)

THE SUPREME COURT OF SAMOA
Police v Iakopo [2017] WSSC 162

Case name:	Police v Iakopo
Citation:	[2017] WSSC 162
Sentence date:	22 November 2017
Parties:	POLICE (Prosecution) v VITALE IAKOPO male of Mulifanua and Saoluafata 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 all 5 counts of rape including the 5 counts of sexual connection with a young person, the accused is convicted and sentenced to 15 years imprisonment. For the 2 counts of sexual connection with a young person under 16 years in relation to the second victim, the accused is convicted and sentenced to 5 years imprisonment. For the one charge of indecent act with a young person in relation to the second victim, the accused is convicted and sentenced to 2 years imprisonment. All sentences are to be served concurrently so that he is sentenced in total to 15 years imprisonment. Any time spent in custody to be deducted. Finally in terms of orders, there will be an order permanently suppressing or prohibiting the publication of the names of the victims. The suppression order does not relate to the defendant.
Representation:	A. Matalasi & L. Mamaia Prosecution Accused Unrepresented
Catchwords:	Rape Sexual Connection with a young person under 16 years Indecent Act
Words and phrases:
Legislation cited:	Crimes Act 2013, section 49(1) (a) Crimes Act 2013, secton 59(1) Crimes Act 2013, section 59(3)
Cases cited:	Police v Filipo [2011] WSSC 127 Key v Police [2013] WSCA(28 June 2013) Police v P [2009] WSSC 16 (2 March 2009)
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

VITALE IAKOPO male of Mulifanua and Saoluafata
Accused

Counsel:
A Matalasi and L Mamaia for Prosecution
Accused Unrepresented

Sentence: 22 November 2017

SENTENCE

THE NAMES OF THE VICTIMS ARE PERMANENTLY SUPPRESSED.

The charge

1. The accused appears for sentence on five counts of rape pursuant to s.49(1)(a) of the Crimes Act 2013, 7 counts of sexual connection with a young person under 16 years pursuant to s59(1) of the Crimes Act 2013 and one count of doing an indecent act on a young person pursuant to s59(3) of the Crimes Act 2013. Each charge of rape carries a maximum penalty of life imprisonment. Each charge of sexual connection with a young person under 16 years carries a maximum penalty of 10 years imprisonment. Indecent act carries a maximum penalty of 7 years imprisonment.
2. These charges are in relation to 2 victims. The 15 year old is the victim of the 5 rape offences and 5 sexual connection offences, while the 14 year old is the victim of 2 sexual connection offences and one indecent act offence.
3. The accused was found guilty by assessors after a defended hearing on 4 October 2017.

The offending

4. According to the evidence, sometime between 31 July 2015 and 1 December 2016, the accused was married to the older sister of the 2 victims. One victim was 15 years old and the other was 14 years old at the time. The accused is their brother in law.
5. He raped the 15 year old victim 5 times within that time. His modus operandi was to ask for the victims to be sent to his house. He and his wife lived inland near their plantation. The girls lived on the government main road. On all these occasions, he would commit acts of sexual connection on the victim by sucking her breasts and inserting his fingers inside her vagina.
6. On the second victim he committed 2 acts of sexual connection by sucking her breasts and inserting his fingers inside her vagina.
7. There was one occasion during which he got both victims to engage in sexual activity with him. He got one victim to sit on his face while he licked her vagina and at the same time he got the other victim to suck his penis.

The accused

8. As shown in the pre-sentence report, the accused is 37 years old. He is married with 3 children aged 1-6 years. He lived at Saoluafata, his wife’s village when this offending occurred. He was the sole breadwinner earning $150 per week as a groundsman.
9. As a result of this offending, the accused has been banished from Saoluafata. The village mayor has confirmed this.
10. His wife says that she feels ashamed and was shocked when she found out about this matter. However she remains supportive of her husband and has accepted his apology. Both her and her brother say that the accused is hard working and responsible. They say he is supportive of his wife and her family.
11. The accused has maintained his innocence to Probation. He says that this matter has brought shame on him and has tarnished the reputation of his family. He says that the rape victim did not fall pregnant to him. There was no allegation like that in the case against him. She fell pregnant to someone else subsequent to this offending.
12. He is a first offender.

The victims

13. According to the victim impact report from the 15 year old victim of the rape offences, she feels ashamed about what happened. She does not want to think about it anymore and has forgiven the accused. She has since had a child to someone else. She says she was unhappy as the accused was her sister’s husband and yet he did this to her. She was scared when it happened. When it was discovered she felt embarrassed.
14. Her younger sister, the 14 year old victim of sexual connection and indecent act by the accused says that she was fearful each time the accused came to her. He would come to her when her older sister who is his wife was away. Although she finds it hard to accept, she says that she forgives him and is trying to move on with her life.
15. The mother of the victims says that the accused and his family have apologised to her. She has accepted the apology and the two families have reconciled.

Aggravating features of the offending

16. The aggravating features of this offending are firstly, the gross breach of trust. The accused is the brother in law of the victims as he is married to their older sister. He is in essence the older brother of these victims. Instead of protecting them as younger sisters, he took advantage of his position towards his wife’s younger sisters. The breach of trust in this case is significant. The Sentencing Act 2016 in section 8 directs the Court in cases involving violence against persons under 18 years to consider, the magnitude of the breach of the relationship of trust between the victim and the accused. This is a case of sexual violence.
17. The age of the victims, is another aggravating factor. They were 14 and 15 years old at the time the accused committed these offences on them. The Sentencing Act 2016, section 7(1)(g) further reinforces as an aggravating factor, the vulnerability of the victims because of their ages, which was known to the accused.
18. The age difference of over 20 years between the accused and the victims is also an aggravating factor. The accused is an adult, married with children and with immense life experience as opposed to these young victims.
19. Section 17 of the Family Safety Act 2013 directs the Court to consider as an aggravating factor against the accused if an offence took place within the context of a domestic relationship. “Domestic relationship” is defined in section 2 of the same Act as including where the victim and accused are family members related by marriage or blood or they are a person who has or had parental responsibility for that child. The accused is related by marriage to the victims. It is inexcusable behaviour by the accused who is part of the family, towards these young girls
20. The degree of premeditation in the commission of these offences is an aggravating feature. The accused would ask for the victims to come to his house at times when he knew he was alone. He would also take them into the bush where he knew he could be alone with them.
21. The psychological impact on the victims is taken into account as an aggravating feature. The impacts are seen in the Victim impact reports of the rape victims. They are unhappy, ashamed and sad. They are trying to move on with their lives.

Mitigating Factors

22. I take into account the penalty imposed by the village of Saoluafata pursuant to s8 of the Village Fono Act 1990 which provides;

8. Courts to take account of penalty imposed by Village Fono– When punishment has been imposed by a Village Fono in respect of village misconduct by any person and that person is convicted by a Court of a crime or offence in respect of the same matter the Court shall take into account in mitigation of sentence the punishment imposed by that Village Fono.

23. The accused has been banished from Saoluafata.
24. I take into account what his wife and brother in law have said about him being hard working, supportive and responsible. This is in line with his good character as evidenced by his first offender status.
25. I take into account the apology that he and his family made to the family of the victims. This apology was accepted. This is in accordance with s9(c) Sentencing Act 2016 which allows the Court to take into account in sentencing, the response of the defendant or his family to the offending. He has also apologised in Court.
26. I take into account his personal circumstances. He has a wife and 3 children who no doubt suffered as a result of this offending and will suffer today as a result of this sentence.

Discussion

27. The charge of rape carries the highest penalty available under the criminal law and that is imprisonment for life. In Police v Filipo [2011] WSSC 127, the Court stated;

Rape is one of the most serious crimes as stated in the legislative provisions of most societies and was always regarded as such at common law. The reasons are self-evident.

28. Vaai J in Police v Pauesi (9 May 2008) remarked about sentencing for rape offences;

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. In this case, there is a need to hold the accused accountable for the harm done to the victims, to promote in him a sense of responsibility for, and an acknowledgment of that harm, and to provide for the interests of the victims who are young, vulnerable and defenceless at the time.
30. There is also an overriding need to deter the accused and others from committing the same or similar offences and to protect the community from the accused. This protection is particularly important for children, the most vulnerable members of any community. It is of concern to the Court that this offending occurred within the sanctuary of a home, committed by a family member. This breach of trust is unacceptable and the Court will take a tough stance against this type of offending in an effort to eradicate this type of offending. There is a Samoan saying “ A malu i fale e malu foi i fafo” which means if you are safe in your family you will be safe outside. I sincerely hope for the young girls of Samoa that family and village leaders take heed of this.
31. Prosecution has submitted that a starting point of 25 years imprisonment is appropriate for the rape charges.
32. 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.
33. To be read in conjunction with R v AM, is the case of Key v Police [2013] WSCA(28 June 2013) where the Samoa Court of Appeal found it appropriate to issue 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.
34. The rape bands in Key v Police are;

(a) 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);

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

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

(d) 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).

35. 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”.
36. I will firstly hand down a sentence in relation to the 5 rape charges against the 15 year old victim. Given what happened in this case, I place his offending in Rape Band 4 (19 years to life). It is a case of repeat family offending which occurred over the period of approximately one year, although not a lengthy period of time, is still for this young girl a considerable amount of time.
37. I assess his culpability at a relatively high level as the aggravating features are at a relatively serious level. There are 5 charges of rape against the same victim. She was his sister in law and 15 years old. The rapes were accompanied by the acts of sexual connection. At the same time, he committed sexual connection with the younger sister of the rape victim, a young girl of 14 years old.
38. I will adopt the totality approach to this sentence and give one sentence for the 5 counts of rape, and the 5 counts of sexual connection in relation to the 15 year old victim. Sapolu CJ explained this approach in Police v P [2009] WSSC 16 (2 March 2009), “ you take into consideration the totality of the offending by the accused in terms of all the offences on which he is appearing for sentence. This is also relevant in setting a starting point for sentence”.
39. For the lead offences of rape, 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 therefore take 22 years imprisonment as the starting point for sentence. I deduct 2 years for the penalty imposed by the village. I deduct 2 years for his personal circumstances and his character prior to the offending. I finally deduct 3 years for the apology to the victim’s family.

The result

40. For all 5 counts of rape including the 5 counts of sexual connection with a young person, the accused is convicted and sentenced to 15 years imprisonment.
41. For the 2 counts of sexual connection with a young person under 16 years in relation to the second victim, the accused is convicted and sentenced to 5 years imprisonment.
42. For the one charge of indecent act with a young person in relation to the second victim, the accused is convicted and sentenced to 2 years imprisonment.
43. All sentences are to be served concurrently so that he is sentenced in total to 15 years imprisonment.
44. Any time spent in custody to be deducted.
45. Finally in terms of orders, there will be an order permanently suppressing or prohibiting the publication of the names of the victims. The suppression order does not relate to the defendant.

JUSTICE TAFAOIMALO LEILANI TUALA-WARREN