Police v Sooa [2019] WSSC 55 (31 October 2019)

THE SUPREME COURT OF SAMOA
Police v Sooa [2019] WSSC 55

Case name:	Police v Sooa
Citation:	[2019] WSSC 55
Sentence date:	31 October 2019
Parties:	POLICE (Prosecution) v SIAOSI SOOA male of Lalomauga and Faatoia 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:	Convicted and sentenced to 13 ½ years imprisonment. For the two counts of indecent assault the accused is convicted and sentenced to 9 months imprisonment. These sentences will be served concurrently. Time served in custody to be deducted
Representation:	F Ioane for Prosecution F Tufuga for the Accused
Catchwords:	Rape Indecent assault
Words and phrases:
Legislation cited:	Crimes Act 2013, section 49(1)(a) Crimes Act 2013, section 60
Cases cited:	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

SIAOSI SOOA male of Lalomauga and Faatoia
Accused

Counsel:
F Ioane for Prosecution
F Tufuga for the accused

Sentence: 31 October 2019

SENTENCE

The charges

1. The accused appears for sentence on 1 charge of rape pursuant to s.49(1)(a) of the Crimes Act 2013 and two charges of indecent assault pursuant to section 60 of the Crimes Act 2013. The victim of the rape is different from the victim of the indecent assaults.
2. Rape carries a maximum penalty of life imprisonment while indecent assault carries a maximum penalty of 5 years imprisonment.
3. The accused was found guilty of rape by assessors after a defended hearing on 19 September 2019 and I found him guilty of the indecent assaults.

The offending

4. According to the evidence, the accused lived with his family in the same compound as the two victims. The victim of the rape is the wife of his brother in law. She was 20 years old. The victim of the indecent assaults is the niece of the accused and she was 19 years old.
   
5. Sometime between 1 June 2016 and 30 June 2016, the victim of the indecent assaults was babysitting her uncle’s young children. Sometime between 10pm and 11pm when the children had fallen asleep, the victim went to shower. After her shower she returned into the room and the accused was in the room. He grabbed her and her towel fell down. He then squeezed her breasts and touched her vagina.
6. On 20 August 2016, the victim of the rape had gone to the shop sometime in the morning. On her way back she stopped at the accused’s home for some ice water. While she was getting ice water from the fridge the accused grabbed her, pushed her onto the floor and proceeded to have sex with her without her consent.
7. He told both victims to not say anything otherwise they will see what will happen to them.

The accused

8. As shown in the pre-sentence report, the accused is now 52 years old. He is married with 4 children. He has worked for EPC and SPA.
9. His village mayor and church minister have written testimonials in his favour. Both say he is reliable and helpful in village and church matters.
10. There has been no reconciliation within the family. He tells Probation that he has accepted the Court’s verdict and he implores the mercy of the Court.
11. He is a first offender.

The victims

12. Both victims were visibly shaken during their testimonies, having to relive their experiences.
13. In the pre-sentence report, the victim of the indecent assault says;

Emotional depressed at most times, anxiety kicks in very often, ever since this incidents happen before I left the country, I cant go anywhere by myself, at night time is my biggest fear of sleeping alone. Cant even bring myself to talk to anyone else, mostly prefer to sit by myself and isolate from everyone that surrounds me. Knowing that this man who did this to me is behind bar has put me in peace of mind and I feel ease and safe at last.

14. She says there has been no apology.
15. The victim of the rape says that as a result of the offending she and her husband separated for about 4 months. There was a huge change in her which her husband noticed. She had tried to hide what happened from her husband.
16. She says she did not know that she was pregnant when she was raped by the accused and only found out when she miscarried later. She had to be hospitalised for 3 days. She says she does not want to see the accused again.
17. She says she was scared and did not want to speak to anyone. The separation from her husband was particularly hard for her and her two children as they depended on him financially.

Aggravating features of the offending

18. The aggravating features of this offending are;

The victims are both younger family members of the accused, living in the same compound. 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. The accused is related by marriage to both victims;

There is a significant breach of trust by an older family member. These victims were much younger members of his family;

There is a huge age disparity between both victims and the accused, being well over 20 years, making them vulnerable;

He threatened both to not tell anyone of his offending; and

The impact on both victims, in particular the victim of the rape who suffered a miscarriage as a result of the offending.

Mitigating Factors

19. 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:

his previous good character as seen in the written testimonials;

his wife’s attempts at reconciliation, although not accepted by the families of the victims, is taken into account as it shows measures taken by the family of the accused to apologise to the family of the victims (section 9 Sentencing Act 2016);

and his remorse expressed through Counsel today.

Discussion

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

Average sentence lengths for rape

21. 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.
22. 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 family residential compound, committed by an older family member.
23. In this case, it appears from the evidence that this accused preyed on the young women of his wife’s family. It is unfortunate as he should have been their protector, being an older uncle. This case is even more tragic as it resulted in the victim of the rape miscarrying.
24. Prosecution has submitted that a starting point of 15 years imprisonment is appropriate somewhere in rape band 2 (9-15 years).
25. Defence Counsel submits that a starting point of in rape Band 1(8-10 years) is more appropriate.
26. 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).

27. In assessing culpability to determine a starting point for rape in the case before me now, I take into account the domestic relationship between the accused and the victim, the impact on her, the most severe being the miscarriage, the threat to her after the offending, the breach of trust and the huge age disparity.
28. I assess his culpability to be within the lower end of rape band 3 (14-20 years).
29. Having regard to the aggravating features relating to this offending (there being no mitigating features of the offending), I take 15 years imprisonment as the starting point for sentence. I deduct 12 months for his previous good character as reflected in the written testimonials of his village mayor, faifeau and Defence Counsel who he worked with at SPA. I deduct 6 months for his family’s attempt at reconciliation and his remorse expressed through Counsel.

The result

30. For the charge of rape, the accused is convicted and sentenced to 13 ½ years imprisonment.
31. For the two counts of indecent assault the accused is convicted and sentenced to 9 months imprisonment.
32. These sentences will be served concurrently.
33. Time served in custody to be deducted.
    

JUSTICE TAFAOIMALO LEILANI TUALA-WARREN