Police v Ah Cheem [2017] WSSC 89 (23 June 2017)

IN THE SUPREME COURT OF SAMOA
Police v Ah Cheem [2017] WSSC 89

Case name:	Police v Ah Cheem
Citation:	[2017] WSSC 89
Decision date:	23 June 2017
Parties:	POLICE (Informant) and MAKULATA LAM AH CHEEM male of Sapapalii (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Mata Keli Tuatagaloa
On appeal from:
Order:	- Convicted and sentenced to 14 years and 6 months imprisonment.
Representation:	L Sio for Prosecution D Kerslake for the Defendant
Catchwords:	Rape – sexual violation – 20 year age disparity – pre-meditated – first offender – sentencing bands – custodial sentence
Words and phrases:	Occurred several times – accused banished from village – accused apologised to parents of victim – victim a minor – victim related to accused wife
Legislation cited:	Crimes Act 2013 ss. 49(1)(a); 52(1)
Cases cited:	Key v Police [2013] WSCA 03
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

MAKULATA LAM AH CHEEM male of Sapapalii, Savaii
Defendant

Counsel:
L Sio for Prosecution
D Kerslake for the Defendant

Sentence: 23 June 2017

SENTENCING OF TUATAGALOA J

1. The accused appears for sentence on three charges of rape under s. 49(1)(a) of the Crimes Act 2013 which s. 52(1) provides the penalty of life imprisonment.

The offending:

2. The accused confirms the summary of facts by the Prosecution which basically says that the accused raped the victim on three different occasions as follow:
   • The first was between 01 August – 06 August 2016 when the victim went with her friend to fetch firewood and met the accused also fetching firewood. The accused asked the victim to go with him to have sex. The victim refused and the accused took her by the hand and pulled her behind some gate and sexually violated the victim. The victim is said to have cried as it was painful and told the accused to stop but he did not.
   • The second time was two months after on 1^st October 2016 when the victim again went to fetch firewood from behind their house when the accused saw her. The accused again took her behind the same gate and sexually violated her.
   • The third time was 2 days after on 3^rd October 2016 when the victim this time went to collect coconuts (popo) from behind their house when she met the accused fetching firewood and once again, the accused took the victim and had sex with her without her consent.
   • The PSR records the accused to have said that he had sexual intercourse with the victim seven times and some of those times the victim consented but at other times he knew that the victim did not consent but he nevertheless had sex with her.

The accused:

3. The accused at the time of the offending was 33 years’ old of Sapapalii, Savaii married with seven children. The pre-sentence report (PSR) says the accused has never had any formal education and can only spell his name. He has never been employed and has only worked the plantation. The accused has been banished from the village of Sapapalii and currently lives with his family at Vaitele.
4. The accused wife continues to support the accused saying that he is a person of good character, a loving husband to her and their children. There is written testimonial by the pastor for the AOG church at Aleisa near where the accused currently lives. The pastor says that the accused and his family are devoted Christians and he offered to carry out spiritual counseling for the accused.
5. The accused said in PSR that he and his wife went and apologized to the victim’s parents which, was only accepted after a long session.

The victim:

6. The victim from the prosecution’s summary of facts was 13 years' old at the time. From the PSR the victim and the accused wife are related. The young victim spoke about her ordeal in the VIR that she was a virgin prior to the first time she was sexually violated by the accused. She bled and was sore from the first encounter. She was scared of the accused and worried of what her family would do to her if they find out.
7. The young victim is said to be staying with Samoa Victim Support Group.

The aggravating factors:

8. The most aggravating factor of this offending is the huge age difference of 20 years between the accused and the victim’s age. The bigger the age gap the more vulnerable the victim is and the more culpable the offender is.
9. The accused says in the PSR that the young victim is related to his wife and she usually goes over to their house to play with his own children. There was then familial ‘trust’ between the accused and the young victim in which the trust has been severely breached by the accused. Our society is structured around our cultural values and great emphasis placed on the importance of family. Our young children should feel safe when they are amongst family.
10. The summary of facts says the accused sexually violated the young victim three times. The number of times is not only aggravating in itself but also shows that it was pre-meditated and not co-incidental. The offending happened when the young victim went behind their house to either fetch firewood or collect coconuts (popo).
11. This offending is inherently violent because it is committed without consent. When there is collateral or associated violence it is then more aggravating. In this case, there was associated violence. The summary of facts says that the accused pulled the victim behind a gate despite her refusal.
12. Any sexual offending in my view will always have an impact on young victims. The younger the victim is, the more affected she is not only physically but long term detrimental emotional and psychological impact.

The mitigating factors:

13. The accused is said to be a first offender, therefore presumably, of previous good character. I have difficulty reconciling the person the wife is talking about as a loving husband, the person the pastor refers to as a devout Christian and the person that is, the accused, who did what he did to the victim who was only 13 years old at the time. A devout Christian (in my view) will not do what the accused did and a loving husband to his wife and children whom the eldest is around the same age as the victim should be treating the victim as his own child instead of doing what he did. The accused first offender status is neutral.
14. The accused and his family have apologized to the victim’s family and have been accepted. The victim says there has been no apology. I accept that the accused and his wife have apologized to the victim’s parents. The victim may not have known this as she has been staying with the Samoa Victim support Group.
15. I will consider and give a discount for the accused banishment from his village of Sapapalii.
16. The accused may have changed his pleas a couple of times, this was understandable as there were various charges laid by the police which were all withdrawn when the accused vacated his ‘not guilty’ plea to ‘guilty’ to the three rape charges. The change although late, has still saved the court’s time and especially the young victim from giving evidence and reliving the whole ordeal again. The court gives a 10% discount for the change of plea.

Discussion:

17. The reason behind the law is out, of the need to protect young girls from people like the accused. The safety of our young vulnerable girls from predatory behaviors of older males needs to be vigilantly protected. For a country that places a lot of emphasis on family, culture and religion the increase in the number of sexual violations and abuse against young girls in villages and especially within families’ shows a breakdown in our society and in our cultural values. It is from our culture that we place importance in the status of our children, our women and overall our aiga (family). It is with a heavy heart that such values are very much being threatened.
18. It is without a doubt that a custodial sentence is most appropriate. The only question is how long.
19. The case of Key v Police^[1] provides the sentencing bands guideline for rape which are:
    • (a) Band 1: 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) Band 2: 9 – 15 years – Where violence and premeditation are moderate.
    • (c) Band 3: 14 -20 years – Aggravating features at a relatively serious level.
    • (d) Band 4: 19 – life imprisonment – As well as the aggravating features in Band 3 it is likely to consist of multiple offending over a considerable time. Repeat family offending would fall into this band.
20. The prosecution provides sentencing decisions of this court in similar circumstances which range from 16 years - 20 years starting point. Prosecution given the circumstances of this offending seek for a starting point of 19 years as in upper end of Band 3 and lower end of Band 4. Counsel for the accused asks for a starting point within Band 1 or Band 2 of Key.
21. In the circumstances of this particular offending, taking in to account the aggravating factors I take the totality approach and take as appropriate the starting point of 18 years as in Band 3 of Key^[2]. I deduct 20 months for the apology and banishment which leaves 16 years and 3 months. I give 10% discount of 20 months for the change of plea. The end sentence is 14 years and 6 months
22. The accused is convicted and sentenced to 14 years and 6 months imprisonment.
    

JUSTICE TUATAGALOA

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^[1] Key v Police [2013] WSCA 03
^[2] ibid