Police v Ionatana [2017] WSSC 50 (24 February 2017)

SUPREME COURT OF SAMOA
Police v Ionatana [2017] WSSC 50

Case name:	Police v Ionatana
Citation:	[2017] WSSC 50
Decision date:	24 February 2017
Parties:	POLICE (Prosecution) v IONATANA ASIATA IONATANA male of Vaega Satupaitea (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Tuala Warren
On appeal from:
Order:	For the offence of rape, the accused is convicted and sentenced to 5 ½ years imprisonment. Time spent in custody will be deducted. 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
Representation:	L. Sio for Prosecution D. Roma for the Accused
Catchwords:	Rape – maximum penalty of life imprisonment – psychological impact on the victim – starting point for sentence – sentence
Words and phrases:
Legislation cited:	Crimes Act 2013, ss. 49(1)(a) and 52(1), Sentencing Act 2016 s 7(3)
Cases cited:	Police v Filipo [2011] WSSC 127, -Police v Pauesi (9 May 2008) -R v AM (CA 27/2009, CA 32/2009), - Key v Police [2013] WSCA(28 June 2013)
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

IONATANA ASIATA IONATANA male of Vaega Satupaitea
Accused

Counsel:
L. Sio for Prosecution
D. Roma for the Accused

Sentence: 24 February 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 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.
2. On 30 January 2017, leave was granted to vacate his not guilty plea and this was substituted with a guilty plea to the charge.

The offending

3. The Prosecution summary of facts admitted by the accused says that on 28 September 2015 at about 9pm, the victim went with the accused in his car to drop off the pastor’s food. After dropping the pastor’s food, the accused instead of driving home, drove towards Vailoa Palauli. When the victim asked where they were going he said they were going to the store. However he did not stop at the store but drove to an isolated area at Vailoa Palauli. The accused stopped the car and placed his hand over the victim’s mouth, pushed her body downwards onto the car seat and got on top of the victim.
4. He then tried to kiss the victim on her mouth but the victim cried and used her hands to fend off the accused until she got tired.
5. The accused then forcibly removed the victim’s shirt and sucked her breasts and kissed her on the neck.
6. Shortly after the accused removed the victim’s sarong, shorts and panty. At that time the victim was crying. After removing all the victim’s clothes, the accused inserted his penis into the victim’s vagina and had sexual intercourse with the victim without her consent.
7. While the accused was having sexual intercourse with the victim, the victim cried and and said “ou ke ofo i lou faia o lea mea ia au ae sa ka fagagu faakasi ma i le magava e kasi”.
8. Five minutes later the accused ejaculated and got off the victim. He said to the victim “ ou ke faiokia oe, oga ou oki ai lea ma au”.
9. The accused and the victim are first cousins.

The accused

10. As shown in the pre-sentence report, the accused is 45 years old. He is married with five children aged 21 years to 5 years. He runs his own carpentry company earning around $2000 a fortnight. He is the sole provider for his family as his wife stays home to look after their young children.
11. The accused left school at Year 7 and started working on his family’s plantation.
12. His wife told Probation that he is reliable, hard working and loving towards her and their children. She remains supportive of him.
13. There are testimonials from his Reverend, his village mayor, his employer and five family matai all attesting to his good character, his contribution to the family, church and village and his hard work as an employee. The village mayor also confirms that the accused paid a village penalty of cows, pigs, fine mats and money. The family matai say that the family of the accused performed an ifoga to the family of the victim, which was accepted culminating in a joint prayer service.
14. The accused told Probation that he had consumed 7 large bottles of beer. He says he told the victim he wants to have sex with her. He kissed her and she responded favourably. They had sexual intercourse and the victim did not reject.
15. I do not accept that the sex was consensual as the victim impact report dispels any such claim. The victim confirms an absence of consent.
16. The accused says he felt guilty so he told his wife three weeks later. His wife and the victim argued and the victim reported the matter to Police.
17. Probation submits that a community based sentence is suitable.
18. He is a first offender.

The victim

19. The victim is 35 years old, divorced with three children. She is a sales representative.
20. She says in the report that it took an hour for her to reject the accused while he was trying to rape her inside the car. She got very tired and got bruises on her back when she was forced to kiss and have sex with him.
21. The victim says that she feels scared and fears that this might happen again. She cannot forget it and she will never forgive the accused even though there has been reconciliation between family members.
22. Since the incident she says she has not trusted anyone in the family. She does not want to see the accused again because she has suffered. The accused has breached their trust as a family. He and his wife approached her on new year’s eve 2017 and apologised. She accepted the apology but says it is hard for her to forgive and forget. The offending has damaged her reputation in her job and in the village including her children.

Aggravating features of the offending

23. It is aggravating that the accused is closely related to the victim, being her older first cousin. In essence, the closeness of this family connection is often equated in Samoan culture as a brother-sister relationship. The breach of trust in this case is significant. She would have trusted him as they were in his car going to drop food at the pastor’s house, a seemingly harmless chore. She would have had no reason to be suspicious or cautious of him. He abused this position of trust and authority. Her shock and disbelief at his actions are encapsulated in her words at the time he was raping her, “ou ke ofo i lou faia o lea mea ia au ae sa ka fagagau faakasi ma i le magava e kasi”.
24. This offending was also premeditated. The accused drove to an isolated area to ensure that he would be alone with the victim. He lied to her saying that they were going to the shop.
25. The victim was vulnerable as she was in his car and he controlled where they would go. She was alone with him in his car when they arrived at the isolated area.
26. Rape is an inherently violent act. In this case, the victim tried to reject the accused for an hour before she got tired. She suffered bruises to her back when he forced her to have sex.
27. The fact that he threatened to kill her after the rape is an aggravating feature.
28. The physical and psychological impact on the victim is taken into account as an aggravating feature. It is clear from the victim impact report that the victim has been traumatised by this and it has affected her life and the lives of her children.

Mitigating Factors

29. First of all, it is never a mitigating factor that the accused is intoxicated at the time of the offending. This is provided in s 7(3) of the Sentencing Act 2016. The Court must constantly remind the public of this.
30. I believe his remorse is genuine. I take that into account.
31. I take into account firstly the ifoga performed and the apology by the accused.
32. I take into account the village penalty paid by the accused.
33. I take into account the character testimonials. Prior to this offending, he has otherwise been law abiding, contributing to the family, village and church. All who provided testimonials speak highly of him.
34. I take into account in mitigation that the accused entered a belated guilty plea. He will be given some credit for this as it has not necessitated the appearance by the victim and the reliving of a traumatic event in her life.

Discussion

35. 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.
36. 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.
37. There is a need to hold the accused 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.
38. 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.
39. Prosecution has submitted that a starting point of 18 years imprisonment is appropriate. Defence Counsel leaves the starting point to the Court’s discretion.
40. Because of the inevitability that the accused 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. The Court provided two sets of guidelines to assist in determining the starting point.
41. Of more relevance and application (but 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.
42. The rape bands 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).

43. 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”.
44. In assessing culpability to determine a starting point in the case before me now, I take into account the breach of trust because of the closeness of the family connection between the victim and the accused, the level of premeditation involved, the threat to kill and the emotional and psychological trauma to the victim.
45. I assess his culpability at a moderate level where violence and premeditation are moderate.
46. 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 towards the lower end of rape band two (9-15 years).
47. I therefore take 10 years imprisonment as the starting point for sentence. I deduct 1 year for the ifoga, his apology and his remorse. I deduct 1 year for his penalty to the village. I deduct 1 year for his character as attested to by those who provided character testimonials. Finally I deduct 1 ½ years for his belated guilty plea.

The result

48. For the offence of rape, the accused is convicted and sentenced to 5 ½ years imprisonment.
49. Time spent in custody will be deducted.
50. 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 TUALA WARREN