Police v SDT [2020] WSSC 71 (4 November 2020)

SUPREME COURT OF SAMOA
HELD AT MULINUU
Police v SDT [2020] WSSC 71

Case name:	Police v SDT
Citation:	[2020] WSSC 71
Decision date:	4 November 2020
Parties:	POLICE v SDT (a.k.a) STL, male of Saanapu.
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Fepulea’i Ameperosa Roma
On appeal from:
Order:	- On the 2 charges of sexual violation, you are convicted and sentenced to 7 years imprisonment on both charges. The sentences to be served concurrently. Time in custody to be deducted.
Representation:	T. Sasagi for Prosecution T. Leavai for Accused
Catchwords:	aggravating factors – mitigating factors – sexual violation – starting point for sentence
Words and phrases:
Legislation cited:	Crimes Act 2013, s49(1)(a) and 52(1),
Cases cited:	Fetuao v. National Prosecution Office [2016] WSCA 10 (2 September 2016) Police v. Ah Cheem [201] WSSC 84 (23 June 2017); Police v. Leota [201] WSSC 113; Police v. Mavaega Tuilea (21 February 2017); Police v. Fetaiai Meaalofa (18 December 2013) Police v. Savea [2017] WSSC 133 (14 September 2017) Police v. Hunt [2008] WSSC 14 (26 March 2008) Police v. SC [2009] WSSC 77 (17 July 2009)
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

AND

SDT (a.k.a) STL, male of Saanapu.
Accused

Counsel:
Ms T. Sasagi for Prosecution
Ms T. Leavai for Accused

Sentence: 4 November 2020

SENTENCE

Charges

1. Since handing down this sentence earlier this afternoon, I note from the history of these proceedings that no name suppression Order was ever made. I make that Order now is respect of both the victim and yourself, the accused.
2. You appear for sentence on 2 counts of sexual violation contrary to s49(1)(a) and 52(1), Crimes Act 2013. The maximum penalty for each count is life imprisonment.
3. At first you denied the charges. You then vacated your denial and substituted guilty pleas to both charges. Before sentence, you again sought to vacate your substituted guilty pleas and enter not guilty pleas. That application was denied. At sentencing, you disputed parts of the prosecution summary which then required a disputed facts hearing whereby the victim was required to and did testify, and after which I found in favour of the prosecution on most of the facts in dispute. All this while represented by Counsel.

Offending

4. At the time of the offending, the victim was 11 years of age and attending Primary School. Her parents were separated and she came to be under the care of her father’s family at Vailele. She lived with her father’s sister, her husband and their children. Your brother is married to the victim’s aunt and you were living in the same household.
5. On different dates in May 2018, you approached the victim when she was alone and kissed her on the lips. One night between September and November 2018, the victim who had been sleeping in her aunt’s room had gone to the bathroom. She returned to the room when you again approached her. She told you to get out but you continued to approach her. Your forced her to remove her shorts and panties and laid on top of her. You also told her not to scream or tell anyone. You spread her legs and inserted your penis inside her vagina and had sex with her without her consent.
6. On the second occasion on 12 November 2018 at around 11.30pm, the victim was sleeping inside one of the rooms with her father who had come to visit his family. You were sleeping in the living room. Later in the night when the victim had gone to the bathroom, she came out to find you. You led her inside one of the rooms and again told her not to scream or tell anyone. You then forcefully removed her clothes and laid on top of her, inserted your penis inside her vagina and had sex with her without her consent.
7. The victim’s father woke to find that his daughter was not in the room. He came out to find her enter through the back door and you following after her. He suspected that something had happened. He left Vailele with his daughter who was then able to tell her parents what happened. They reported the matter to police.

Victim

8. The victim is now 12 years of age and attending St Mary’s Primary School, Savalalo. At the time of your offending, she was 11 years of age and attending Falefitu Primary School. Her parents had separated and she was living with her father’s side of the family. In the Victim impact report, her mother explains how these incidents have affected her performance at school. This is only part of the psychological impact suffered by the victim. She also confirms that reconciliation has taken place.

Accused

9. You are now 21 years of age. At the time of the offending, you were 18 years and living in the same household with the victim. You are a single male of Saanapu and the youngest of 12 children. You have had a reasonably good level of education. When these charges came up, you were studying Nursing at NUS. Your family has relied on your mother’s teaching job for support as your father has been a dialysis patient for some time. This afternoon, I have information before me confirming that your father passed away very recently. Undoubtedly this will have an impact on you as you face sentence on these serious charges. The testimonials by Rev. Denny Epati and your pulenuu speak highly of your family, your character and contribution to the church and village.

Aggravating Factors

10. Relating to your offending, the following are the aggravating factors:
    • (1) Vulnerability of the victim;
    • (2) Young age of the victim;
    • (3) I find that there was some degree of premeditation;
    • (4) Relationship with the victim – whilst there is no blood connection, the victim’s aunt is married to your brother and you had all been living in the same household at the time of offending;
    • (5) Impact on the victim – physically, mentally and psychologically.
11. There are no aggravating factors relating to you as offender.

Mitigating Factors

12. Relating to your offending, there is nothing to suggest that violence was involved and that any injury was inflicted on the victim as in other cases of sexual violation.
13. As offender, the following are the mitigating factors:
    • (1) Guilty plea – I will not however accord the weight that it normally attracts given the history of you seeking to vacate guilty pleas after they had previously substituted not guilty pleas, and a disputed facts hearing that required the victim to give evidence. I bear in mind however that whilst I accepted prosecution evidence in most parts, I also preferred your evidence in some;
    • (2) Personal circumstances including your age, a good level of education and your first offender status;
    • (3) Reconciliation has taken place and the remorse that you have expressed.

Discussion

14. Sexual violation charges are very serious charges and attract penalties of life imprisonment. Sadly, there continues to be an increase and prevalence of sexual violation cases involving young victims and the Court must continue to send out a strong deterrent message. In your case, there is no question that it warrants a deterrent sentence of imprisonment.
15. Prosecution is seeking a starting point of 20 years. They cite Police v. Ah Cheem [201] WSSC 84 (23 June 2017); Police v. Leota [201] WSSC 113; Police v. Mavaega Tuilea (21 February 2017); Police v. Fetaiai Meaalofa (18 December 2013) and Police v. Savea [2017] WSSC 133 (14 September 2017) and argue that the circumstances of your offending fall under Band 3 of the guideline judgment in Key v. Police [2013] WSCA 3 (28 June 2013).
16. Your Counsel on the other hand submits that the starting point adopted in those cases is much higher compared to the circumstances of your offending. She relies on Police v. Hunt [2008] WSSC 14 (26 March 2008) and Police v. SC [2009] WSSC 77 (17 July 2009) where the Court adopted a starting point of 8 years. Those cases were however decided before the sentencing guideline for rape cases was adopted in Key in 2013.
17. I have reviewed the sentencing authorities cited by prosecution and your Counsel. I have also had regard to Key and the appendix of the Court of Appeal judgment in the more recent case of Fetuao v. National Prosecution Office [2016] WSCA 10 (2 September 2016) which explains the culpability assessment factors and the different bands for sentencing.
18. I do not agree that your case falls under Band 3 as submitted by prosecution. Had it not been for the victim’s young age and the fact that you lived with her in the same household at the time of offending, your case would have fallen under Band 1. The victim was 11 years of age and her clear evidence which was also conceded by you is that she resisted and tried to push you off but you persisted. I find therefore that your offending falls under Band 2 at mid-range and adopt a starting point of 13 years or 156 months.
19. From that term, I deduct 30 months for your young age. I deduct a further 18 months for your previous good character and first offender status. I also deduct 12 months for the reconciliation and your remorse leaving a term of 96 months. I deduct a further 12 months (being 12.5% of that term) for your plea of guilty, leaving a balance of 84 months or 7 years.

Result

20. On the 2 charges of sexual violation, you are convicted and sentenced to 7 years imprisonment on both charges. The sentences to be served concurrently. Time in custody to be deducted.

Justice Fepulea’i A. Roma