Police v Peni [2018] WSSC 37 (23 February 2018)

THE SUPREME COURT OF SAMOA
Police v Peni [2018] WSSC 37

Case name:	Police v Peni
Citation:	[2018] WSSC 37
Sentence date:	23 February 2018
Parties:	POLICE v IOANE PENI male of Apolima-uta and Utualii
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Leilani Tuala-Warren
On appeal from: Order:	For both charges of rape, the accused is convicted and sentenced to 16 years and 6 months imprisonment. For both charges of sexual connection with a dependant family member under 21 years, the accused is convicted and sentenced to 5 years imprisonment. For the charge of attempted sexual connection with a dependant family member under 21 years, the accused is convicted and sentenced to 2 years imprisonment. All sentences are concurrent. - Time served in custody to 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 Mamaia for Prosecution T Patea for the Accused
Catchwords:	Rape Sexual Connection with dependent family member under 12 years Attempt to have sexual connection with a dependent family member under 21 years
Legislation cited:	Crimes Act 2013, section 49(1)(a) Crimes Act 2013, section 56(1) Crimes Act 2013, section 56(2)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

IOANE PENI male of Apolima-uta and Utualii
Accused

Counsel:
L Mamaia for Prosecution
T Patea for the Accused

Sentence: 23 February 2018

SENTENCE

THE NAME OF THE VICTIM IS PERMANENTLY SUPPRESSED.

The charges

1. The accused appears for sentence on 5 charges being two counts of rape pursuant to s.49(1)(a) of the Crimes Act 2013, 2 counts of sexual connection with dependent family member under 21 years pursuant to section 56(1) of the Crimes Act 2013 and one count of attempt to have sexual connection with a dependent family member under 21 years pursuant to section 56(2) of the Crimes Act 2013.
2. Each charge of rape carries a maximum penalty of life imprisonment while all three charges under section 56 of the Crimes Act 2016 carry a maximum penalty of 14 years imprisonment.
3. The accused was found guilty by assessors after a defended hearing.

The offending

4. According to the evidence, sometime between 1 January 2016 and 31 December 2016, the accused lived with the victim in his wife’s family. The victim was adopted by the accused’s stepdaughter, but is related to the accused who is her natural mother’s uncle. The accused’s wife died in 2016. The accused and his wife had been together for over 30 years. The victim was 13 years in 2016. The victim came to live with the accused and his family when she was about 9 years old.
5. During August and September 2016, the accused would often take the victim and her little brothers to the plantation to collect coconuts. On each of those occasions he would send the little brothers further inland to collect coconuts while he would tell the victim to stay with him to husk the coconuts. He would then guide the victim to a secluded area, cut some leaves and make her lie down on the leaves. On one of those occasions, he removed the victim’s clothes and licked her neck, breasts and vagina. He then had sexual intercourse forcibly with her while she tried to push him away. On two occasions, he licked her neck, breasts and vagina but did not have sexual intercourse with her. On one occasion, he lay on top of her while she was fully clothed but because he heard someone coming, he stood up and left.
6. Sometime in September 2016, the accused sent the victim’s little brothers to bring water from a family who lived quite a distance from them. This left the accused and the victim at home. The accused told the victim to give him his axe handle. When she came to give him his axe handle, he lay her on the bed, removed her clothes, licked her neck, breasts and vagina and then inserted his penis inside her vagina.
7. The victim told her adoptive mother twice about what had happened to her before her mother reported it to the Police. The victim is now living with her natural mother.

The accused

8. As shown in the pre-sentence report, the accused is 60 years old. He has two step-children who are both married. His wife has died. At the time of his arrest, he was working as a plantation worker earning $130 per week.
9. His step-son told Probation that the accused is a loving and caring father to his children and grandchildren. He is in disbelief about what his father did, but remains supportive of him.
10. The accused told Probation that he could not help his sexual attraction to the victim so he forced her as she refused to have a sexual relationship with him. He expressed his remorse to Probation and through Defence Counsel.
11. There is a letter from the Sui o le Nuu of Utualii saying that the accused has been banished from Utualii. It is also confirmed that he has been banished from Apolima-Uta.
    
12. There is also a letter from the half-brother of the accused saying that the accused has lived and provided for his wife and her children for over 30 years with no problems or issues until his wife died.
13. Probation does not make a recommendation for sentence.
14. He is a first offender.

The victim

15. The victim says in the Victim Impact Report that her vagina was painful at the time the accused’s penis penetrated her vagina. She says she was afraid of the accused. He would tell her that he would beat her if she told anyone. After the first occasion, she could not sleep at night. She was afraid he would come to her again. She says she had wanted to tell her mother what had happened but was afraid of the accused.

Aggravating features of the offending

16. The aggravating features of this offending are firstly, the age of the victim. She was 13 years old. The Sentencing Act 2016, section 7(1)(g) provides that it is aggravating that the victim was particularly vulnerable because of her age which was known to the accused.
17. The age difference of 45 years is also an aggravating factor. The accused is an adult, married for over 30 years, with grown children and immense life experience as opposed to this young girl of 13 years old.
18. It is also aggravating that the accused is related to the victim, being her granduncle, and the victim lived with his family as one of his grandchildren. It is extremely disturbing that he looked after the victim and her younger brothers from when she was 9 years old. According to the victim’s own words, “ga kausi makou e Ioane”. He took advantage of that position of trust in relation to the victim. This is an aggravating factor in section 7(1)(f) of the Sentencing Act 2016. Section 8 of the Sentencing Act 2016 directs the Court in cases involving violence against persons under 18 years to consider, inter alia, the aggravating factors to the extent they are applicable in the case. One of those aggravating factors is the magnitude of the breach of any relationship of trust between the victim and the accused.
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 the uncle of the victim’s mother. She lived as a child under the protection of the accused and his wife in the family of the accused. He had parental responsibility over her. It is deplorable behaviour by the accused who was in a position of authority and trust in relation to this child and he took advantage of his vulnerable young niece.
20. It is aggravating that the accused raped the victim twice and attempted to have sexual connection with her. He also performed acts of a sexual nature on her three times. There is a significant degree of premeditation involved in this offending. He took active measures to be alone with the victim by sending her younger brothers away on errands.
21. Rape is an inherently violent act, although there was minimal associated violence, in that he forcibly removed her clothes. According to the victim she told him to stop and tried to push him away.

Mitigating Factors

22. I take into account the penalties imposed by the villages of Utualii and Apolima Uta, whereby the accused has been banished.
23. I also take into account his previous good character. He has served his family for many years and has been law abiding till this offending.
24. I take into account his apology to his step-daughter who adopted the victim.

Discussion

25. 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.

26. 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.

27. In this case, 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 who was very young, vulnerable and defenceless at the time.
    
28. 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 major concern to the Court that this offending occurred within the sanctuary of a home, committed by a family member on whom this young victim was dependant. This rape has occurred in a place where this child should be protected and feel protected, her own home. This type of predatory behaviour on young children, whether it occurs within a family or outside of the family, will not be tolerated by the Court and the Court will impose stern penalties on those who commit this type of offending.
29. Before I impose sentence on the accused, I must comment on an aspect of an case which has saddened me the most. After the first incident of rape on this young child, the adoptive mother of the victim became aware of it. However the mother did nothing and the rape occurred again and the sexual connection continued. It is a lesson to all those in whom young victims confide. To choose to do nothing, is to turn a blind eye to what is happening our children.
30. Prosecution has submitted that a starting point of 20 years imprisonment is appropriate in Band 4 of Key v Police. Defence Counsel submits that a starting point in Band 2 of 15 years is more appropriate.
31. 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).

32. In assessing culpability to determine a starting point in the case before me now, I take into account the ages of the victim and of the accused at the time of the offending. The accused was a married man of 58 years in 2016, and the victim was his 13 year old niece. He was 45 years older than the victim and she lived in his home as one of his dependants. This was a significant breach of trust. He raped her twice and performed sexual acts on her twice. He also attempted to have sexual connection with her once. There is a high degree of premeditation. The effect on this young victim is taken into account. She was scared of him and could not sleep out of fear.
33. I assess his culpability at a relatively high level as the aggravating features are at a relatively serious level.
34. I will adopt the totality approach to this sentence and give one sentence for both counts of rape, given the proximity in time. 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”.
35. Obviously here for a starting point, the gravity of the offending and his culpability is increased by the fact that sexual intercourse occurred twice.
36. 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 in the lower end of rape band four (19 years to life) where there are aggravating features at a relatively serious level.
37. I therefore take 20 years imprisonment as the starting point for sentence. I deduct 2 years for the village penalties. I deduct 1 year for his previous good character and his long service to his wife’s family. I deduct 6 months for his apology and remorse.

The result

38. For both charges of rape, the accused is convicted and sentenced to 16 years and 6 months imprisonment.
39. For both charges of sexual connection with a dependant family member under 21 years, the accused is convicted and sentenced to 5 years imprisonment.
40. For the charge of attempted sexual connection with a dependant family member under 21 years, the accused is convicted and sentenced to 2 years imprisonment.
41. All sentences are concurrent.
42. Time served in custody to be deducted.
43. 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