Police v Sione [2018] WSSC 89 (19 June 2018)

THE SUPREME COURT OF SAMOA
Police v Sione [2018] WSSC 89

Case name:	Police v Sione
Citation:	[2018] WSSC 89
Sentence date:	19 June 2018
Parties:	POLICE (Prosecution) v PULEMAU SIONE, male of Auckland New Zealand and Levi Saleimoa 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:	1. For the charge of rape, the accused is convicted and sentenced to 16 years imprisonment. 2. Time served in custody to be deducted. 3. 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:	R Titi for Prosecution M Soonalole for the accused
Catchwords:	Rape
Words and phrases:
Legislation cited:	Crimes Act 2013, section 49 (1)(a) Family Safety Act 2013 section 17
Cases cited:	Police v Luamanuvae [2012] WSSC 4 Police v Pule [2015] WSSC 76
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

PULEMAU SIONE male of Auckland and Levi Saleimoa
Accused

Counsel:
R Titi for Prosecution
M Soonalole for the Accused

Sentence: 19 June 2018

SENTENCE

THE NAME OF THE VICTIM IS PERMANENTLY SUPPRESSED.

The charge

1. The accused appears for sentence on 1 charge of rape pursuant to s.49(1)(a) of the Crimes Act 2013.
2. Rape carries a maximum penalty of life imprisonment.
3. The accused was found guilty by assessors after a defended hearing on 11 May 2018.

The offending

4. According to the evidence, the accused travelled to Samoa from Auckland New Zealand on or about 21 October 2017. The victim and her mother went to the airport to pick up the accused and took him back to their house at Levi Saleimoa. The accused is the eldest brother of the victim’s mother.
   
5. On 22 October 2017, sometime in the evening, the accused consumed some beer. The mother of the victim went to bingo. The victim and her younger cousins set dinner for the accused and then went to their room.
6. At some point during the night at about 10pm, the accused went into the victim’s room where she was sleeping with two younger cousins/siblings. He blocked her mouth with his hand, told her not to tell anyone and proceeded to force himself onto her and forcibly had sex with her despite her protestations. He ejaculated onto a piece of clothing between her legs. Once done, he said to her aua nei taua i se isi o le matou aiga, na te fasiotia ai a’u, na te fanaina ai a’u ma tutuli ai matou ma lo’u tina ma lona aiga. He told her not to say anything to anyone in their family, he would kill her, he would shoot her and chase her and her mother from his family.
7. When the accused left the room, the victim then called her mother and sister numerous times but no one answered. She then messaged her intended adoptive mother in New Zealand who called the Police in Samoa. When the Police arrived, the victim had locked herself in her room and refused to open the door. She was crying and was afraid to come out. As it was revealed from the evidence, she was contemplating suicide. The police officers who attended the call out managed to get the victim out of the room and took her with them. The accused remained in bed in the sitting room.

The accused

8. As shown in the pre-sentence report, the accused is 68 years old. He has one child and has been married twice with his second wife passing away in 2016. He has lived in New Zealand since his early 20s. He was in Samoa visiting family when this offending occurred.
9. His youngest sister who is the mother of the victim remains supportive of her eldest brother the accused. She says that he has always supported their family and contributed to family faalavelave without fail.
10. The Methodist Minister of Levi Saleimoa has written in support of the accused. He says the accused contributes to his family and church when he is in Samoa, and that he is kind and hard working.
11. There has been reconciliation in relation to this matter between the accused and his siblings.
12. The accused maintains his innocence to Probation.
13. He is a first offender.

The victim

14. The victim was visibly shaken during her testimony. She gave evidence that she contemplated suicide because of what the accused had done to her. This indicates the desolation felt by the victim.
15. In the pre-sentence report, it says that the victim has been adopted to an aunty in New Zealand and she currently lives in NZ.

Aggravating features of the offending

16. The aggravating features of this offending are firstly, the age of the victim. She was 18 years old at the time of the offending. 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 49 years is also an aggravating factor. The accused is an adult, with immense life experience as opposed to this young victim of 18 years old. Sapolu CJ says of this vulnerability in Police v Luamanuvae [2012] WSSC 4;

Regarding vulnerability of the victim, the young age of the victim and the age difference of about 11-12 years between the victim and the accused made her vulnerable to the accused.

18. It is also aggravating that the accused is related to the victim, being her uncle, her mother’s eldest brother and the sao of their family. The whole family at Levi Saleimoa were dependent on the accused for money, cars and shelter. He took advantage of that position of authority and trust in relation to the victim. The magnitude of the breach of relationship of trust between the victim and the accused is an aggravating factor. He had just arrived from New Zealand the day before and the family had prepared for his arrival given that he was highly respected and loved by the family. He held a special position of authority and trust in relation to all family members which he abused when he raped the victim. This position of authority, respect and trust held by the accused also makes the victim particularly vulnerable as she and her whole family were at that time financially dependent on and obedient to 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, the eldest brother of the victim’s mother.
    
20. It is aggravating that the accused threatened the victim after raping her. He threatened to kill her, shoot her and remove her family from their home in Levi Saleimoa. Threats to kill are acts of threatened violence.
21. The harm to the victim is a significant aggravating factor. The victim contemplated suicide and was inconsolable when the Police arrived.

Mitigating Factors

22. With regard to mitigating features, there is no mitigating feature in relation to the offending but there are mitigating features personal to the accused. These are:

(a) his previous good character in that he has been supporting his family in Samoa financially for many years from New Zealand; and

(b) the reconciliation within the family.

Discussion

23. Vaai J in Police v Pule [2015] WSSC 76 stated in relation to sentences for rape;

Average sentence lengths for rape&#1b> have been incr increasing. But so too, as the prosecution counsel correctly submitted, is the rise in sexual offending. This rbing prevalence in sexual abuse must be met with stern measures to reflect society’s217;s revulsion and denunciation.

24. 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 young, vulnerable and defenceless at the time.
25. 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 young persons. 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 occurred in a place where this young person should be protected and feel protected, her own home. This type of sexual offending on young persons, 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.
26. This type of sexual offending within the family which has become so visible in the Courts as of late runs contrary to the Convention on the Rights of the Child to which Samoa is a party. The preamble to that Convention so far as it is relevant provides;
    

Recalling that, in the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is entitled to special care and assistance,

Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,

Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding,

Considering that the child should be fully prepared to live an individual life in society, and brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity,

27. Prosecution has submitted that a starting point of 19 years imprisonment is appropriate somewhere between Band 3 and 4 of Key v Police.
28. Defence Counsel submits that a starting point of 14 years in Band 3 is more appropriate.
29. 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).

30. 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, she was his sister’s daughter, he was the sao of the family on whom the victim and her whole family relied for financial and other support, the threat to kill and shoot her if she told anyone and the significant breach of authority and trust. The effect on this young victim is taken into account. She contemplated suicide and was distraught and afraid when the police arrived.
31. I assess his culpability at a relatively high level as the aggravating features are at a relatively serious level.
32. 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 upper range of rape band 3 (14-20 years) where there are aggravating features at a relatively serious level.
33. I take 18 years imprisonment as the starting point for sentence. I deduct 1 year for his previous good character and service to his family, and 1 year for the reconciliation within the family.

The result

34. For the charge of rape, the accused is convicted and sentenced to 16 years imprisonment.
35. Time served in custody to be deducted.
36. 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