Police v Augai [2020] WSSC 95 (5 November 2020)

THE SUPREME COURT OF SAMOA
POLICE v AUGAI [2020] WSSC 95

Case name:	POLICE v AUGAI
Citation:	[2020] WSSC 95
Sentence date:	05 November 2020
Parties:	POLICE v SALEUTOGI SUAIA MUSUAI AUGAI aka TAUALOAIA TONY MUSUAI male of Fogaa Faleula and Iva
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 of rape and sentenced to 9 years imprisonment. - Time spent in custody will be deducted
Representation:	V Faasii for the Prosecution M Tuimalealiifano for the Accused
Catchwords:	aggravating features of the offending – apology – breach of trust – rape – starting point for sentence – sentence
Words and phrases:	familial relationship is a significant aggravating factor.
Legislation cited:	Crimes Act 2013, section 49(1)(a) and 52(1)
Cases cited:	R v AM (CA 27/2009, CA 32/2009). Key v Police [2013] WSCA(28 June 2013)
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

SALEUTOGI SUAIA MUSUAI AUGAI aka TAUALOAIA TONY MUSUAI male of Fasitoo uta
Accused

Counsel:
V Faasii for Prosecution
M Tumalealiifano for the accused

Sentence: 05 November 2020

SENTENCE
THE NAME O F THE VICTIM IS PERMANENTLY SUPPRESSED

The charge

1. The defendant appears for sentence on a charge of rape pursuant to sections 49(1)(a) and 52(1) of the Crimes Act 2013, which each carries a maximum penalty of life imprisonment.
2. He changed his plea through Counsel from Not guilty to Guilty on 24 August 2020.

The offending

3. According to the summary of facts, the victim’s maternal grandmother is married to the defendant. They lived together. The defendant is 60 and the victim is 16.
4. Between 17 April 2019 and 30 April 2019, during the night when the victim was asleep inside her mosquito net, the defendant took off her shorts and panties. He then lay on top of the victim. This is when she woke up. The defendant spread her legs, inserted his penis inside her vagina and proceeded to have sexual intercourse with her. The victim tried to push the defendant away but he put his hands inside her shirt and rubbed her breasts while he was inside her. He got off the victim and used 2 fingers to digitally penetrate her. The victim then screamed which alerted her aunty who was outside. The defendant pretended to be asleep in the victim’s mosquito net. The aunty left to get other relatives but when they returned they only found the victim crying. The defendant had left.

The defendant

5. The defendant is now 61 years old. He was married to the victim’s grandmother and they all lived at Iva. His wife passed away last week. He left Iva to return to Faleula when the family chiefs ordered that he leave after the offending. He has 10 children with his wife, 8 are his biological children. He also has grandchildren. He tends to the plantation to support his family.
6. His wife and biological daughter wrote saying that they and all his children have forgiven the defendant, the matter has been reconciled within their family and he is a good man who is the head of their family. The victim also wrote saying that the matter has been reconciled and the defendant is a loving father who looks after and prioritises his children and his family.
7. A chief of the family, church leader and village mayor all wrote in support of the defendant. They all say his service to his family, church and village is outstanding. They say he is hard working and honest.
8. He expressed remorse to Probation and was apologetic.
9. He says that he apologised to his wife and the victim. The apology is confirmed by his family members.
10. The defendant is a first offender.

The victim

11. The victim is now 17. In the victim impact report dated 18 September 2020, she tells of her shock when this occurred. She does not want to see the defendant ever again and says his actions have affected her life. She says this is the first time this has happened to her.
12. She also submitted a letter through Probation dated 11 September 2020 saying that she has forgiven the defendant and that he is a loving father.

Aggravating features of the offending

13. This is a gross breach of trust by the defendant. The victim was his step granddaughter. He committed the offence in the home he shared with her grandmother and other family members. This familial relationship is a significant aggravating factor.
14. I find that there was some premeditation in the offending. It occurred at night when she was asleep and alone.
15. There is a significant age gap between the victim, 16 and the defendant, 60 at the time of the offending.
16. The victim was vulnerable by reason not only of her age but also by reason of the relationship she had to the defendant. He was basically her grandfather.
17. He did not just rape her, he also after raping her, further violated her by inserting his fingers into her vagina.
18. The extent of the harm to the victim is taken into account. This is the first time this has happened to her and was a serious violation of her sexual autonomy. Although she writes to say she has forgiven the defendant, it does not take away from the impact this offending has on her and will continue to have on her through her life.

Mitigating Factors

19. I take into account in mitigation;

i. his previous good character as attested to by those who wrote in support of him. He has for many years been a law abiding and contributing member of society;

ii. The apology and reconciliation with the victim and his family which indicates his genuine remorse; and

iii. His guilty plea.

Discussion

20. Deterrence will be of paramount consideration in today’s sentence. The rape of a young girl is unacceptable and inexcusable, particularly so in a family situation where a child should rightly have an expectation that she or he is safe and protected by the adults in the family. This a man of 60 years raping his step granddaughter. There is a significant need for deterrence, to deter the offender and to deter other like-minded people. This behaviour needs to be expunged for the sake of this country’s children. Today the Court will play its role in purging our county of this deplorable behaviour.
21. There is also a need to hold the defendant 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. The effects of this offending on the victim will no doubt last a lifetime. This sentence says that the victim is important and her interests are considered important.
22. Prosecution has submitted that a starting point of 15 years imprisonment is appropriate. Defence Counsel has submitted that 8 years imprisonment is an appropriate end sentence.
23. Because of the inevitability that the defendant will be imprisoned, I turn now to identify the starting point and in determining that starting point, I am guided by the New Zealand Court of Appeal case of R v AM (CA 27/2009, CA 32/2009). The Court of Appeal set sentencing bands for offending involving sexual violation.
24. The case of Key v Police [2013] WSCA(28 June 2013) is to be read in conjunction with R v AM. In Key v Police the Samoa Court of Appeal issued a guideline decision relating to rape sentences and reminded us that the reasoning in that case (R v AM) and decisions reached relating to rape sentences, except for the actual term of imprisonment, are incorporated into and form part of the decision in Key v Police. Some uplift to the bands in R v AM was appropriate to reflect the greater maximum sentence in Samoa.
25. The rape bands 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).

26. As stated in R v AM and reiterated in Key v Police, I bear in mind that ‘...what is required is an evaluation of all the circumstances” and “a mechanistic view is not appropriate”.
27. In assessing culpability to determine a starting point in the case before me now, I take into account the age and vulnerability of the victim, the impact of this offending on her, the nature of the relationship between the defendant and the victim, he being her step grandfather and the way he has breached that trust. I also take into account that after he raped her, he further violated her by digitally penetrating her.
28. I assess the culpability of the defendant to be relatively high.
29. 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 middle of rape band three (14-20 years) where there are aggravating features at a relatively serious level.
30. I take 16 years imprisonment as the starting point for sentence.
31. I deduct 2 years for his previous good character as attested to by those who provided references, I deduct 1 ½ years for apology and reconciliation with the victim and his family which indicates his genuine remorse, and 25% or 38 months for his belated guilty plea.
32. This leaves 9 years and 4 months. I deduct 4 months for compassionate reasons, having lost his wife last week.

The result

33. The defendant is convicted of rape and sentenced to 9 years imprisonment.
34. Time spent in custody will be deducted.
35. Finally in terms of orders, there will be an order permanently suppressing or prohibiting the publication of the name of the victim. The suppression order does not relate to the defendant.
    

JUSTICE TAFAOIMALO LEILANI TUALA-WARREN