P v NR [2021] WSSC 51 (8 October 2021)

SUPREME COURT OF SAMOA
P v NR [2021] WSSC 51

Case name:	P v NR
Citation:	[2021] WSSC 51
Decision date:	8 October 2021
Parties:	P v NR
Hearing date(s):
File number(s):	S1072 S1071 S1070 S1069 S1068 S1067
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE
On appeal from:
Order:	- I sentence the defendant to a period of imprisonment of 2 years, less any time which may have already been spent in custody. It could have been considerably longer, but for my assessment of the circumstances of the defendant’s age and health issues. I have considered other sentencing options, including community detention, but given the seriousness of the offending involving an old man who should know better and his young family member whom he should be protecting, a deterrent sentence is important to send potential perpetrators that the Court takes very seriously its responsibility of protecting the community from predatory offending. -
Representation:	F Ioane for prosecution L Taimalelagi for accused
Catchwords:	Aggravating features – sexual violation – rape – mitigating feature – maximum penalty – life imprisonment – guilty plea – first offender – starting point for sentence – sentence
Words and phrases:	seriousness of the crime – violence and premeditation – close familial relationship –Court takes very seriously its responsibility of protecting the community from predatory offending
Legislation cited:	Article 9(1) of the Constitution of the Independent State of Samoa Crimes Act 2013, s49 Criminal Procedure Act 2016, s. 56
	Sentencing Act 2016 (“the Act”), in particular ss 5, 6 and 7
Cases cited:	Police v Samau [2010] WSSC 163 R v NR Key v Police [2013] WSCA 03 R v AM [2010] NZCA 114.
	Fetuao v National Prosecution Office [2016] WSCA 10
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN
P
Prosecution

A N D
NR

Accused

Counsel:
F Ioane for prosecution
L Taimalelagi for accused

Sentence: 8 October 2021

SENTENCE OF PERESE CJ

1. This matter is to be reported as R v NR. Further, the Court makes permanent the orders of prohibiting publication of the names of the victim and the prisoner under Article 9(1) of the Constitution of the Independent State of Samoa, and s. 56 Criminal Procedure Act 2016. It is not in the interests of justice for the name of the victim of the sexual offending to be published, and the prisoner’s name of the name of his village is prohibited from being published because publication may lead to the identification of the victim.
2. The defendant is an 87 year old man. He was 86 at the time of the offending. He is married with thirteen children.
3. The victim is a 15 year old girl who now resides with Samoa Victim Support Group.
4. The summary of facts provides:
   • (a) At the time of the offending, the victim was living with the defendant and his wife. The victim’s grand-father (her mother’s father) is the defendant’s brother. Therefore, the victim is the defendant’s niece.
   • (b) On 21 March 2021 sometime in the afternoon after Sunday toonai, the victim’s aunty and uncle and their son went to sleep at their other house located behind the main house, whilst the victim slept in her room.
   • (c) At the time, the defendant was sleeping on the balcony with his wife.
   • (d) The victim as the time was wearing a dress with pink shorts and panty inside her dress.
   • (e) The victim was shocked when she woke up and saw the defendant lying next to her on the bed. The defendant told the victim not to make any noise and told her to lie down; whilst the defendant was saying this to the victim he put his hands on her shoulders and made the victim lie back down on the bed.
   • (f) The defendant lay on the victim and quickly removed his ie lavalava he was wearing and shirt. Whilst this was happening, the defendant continued to tell the victim e aua le pisa (don't make any noise).
   • (g) Whilst the defendant was lying naked on the victim, he used his other hand to press the victim down so she could not escape; whilst the defendant used his other hand to quickly remove the victim’s short and panty and proceeded to kiss the victim on her cheeks.
   • (h) The victim at the time moved her head around to avoid the defendant’s kisses as she did not consent to this.
   • (i) The defendant then pulled up the victim’s dress and bra and proceeded to suck on the victim’s breasts. The victim struggled to move away from the defendant, but the defendant was lying heavily on her so her movements were unsuccessful.
   • (j) The defendant then moved his head down to the victim’s vagina and proceeded to perform oral sex on her. Whilst this was happening, the defendant continued to tell the victim aua nei pisa.
   • (k) The defendant then spread the victim’s legs and inserted his penis inside her vagina. The pair then had sexual intercourse without the victim’s consent.
   • (l) The victim at the time felt her legs were numb whilst the defendant was moving back and forth.
   • (m) Not long after, the victim heard her aunty calling her name to go open the shop. As soon as the defendant heard this, he quickly moved away from the victim and threw her the bedsheet to cover herself.
   • (n) The victim got up and quickly put on her dress and ran to the bathroom to clean up.
   • (o) The victim walked out and walked over to the front to open the shop, she saw the defendant looking at her with a worried appearance that the victim might tell her aunty what the defendant had done to her.
   • (p) The victim did not tell her aunty what the defendant did to her that afternoon.
   • (q) The victim on that Sunday then stayed to look after the shop which closed at 10pm.
   • (r) After 10pm when the victim closed the shop, the victim went to take a shower and get ready for bed.
   • (s) Sometime at 2am the following morning, the defendant again approached the victim in her sleep.
   • (t) The defendant quickly removed his clothes and told the victim aua le pisa toe tasi a.
   • (u) AT the time, the victim was scared seeing the defendant who is an old man and could not believe the defendant was doing this to her again.
   • (v) The defendant then quickly removed the victim’s panty and sucked on her breasts, moving down to her vagina.
   • (w) The defendant again spread her legs and inserted his penis inside her vagina and had sexual intercourse with the victim without her consent.
   • (x) The defendant moved his body back and forth on top of the victim until he ejaculated.
   • (y) Afterwards, the defendant instructed the victim not to tell anyone. This made the victim even more scared.
   • (z) The following morning, the victim did not tell anyone but she was waiting for the defendant’s older son to arrive home so she can tell him what happened. The victim was scared that if she told her aunty, she might not believe her. Thursday within the week the 2 incidents occurred, the victim told her cousin about what the defendant did to her.
5. The defendant has been charged with one count of sexual violation pursuant to section 49 of the Crimes Act 2013. The seriousness of the crime is reflected in the maximum penalty which may be imposed of life imprisonment.
6. On 26 July 2021 at Mentions, the defendant through his Counsel entered a guilty plea to the charge against him.
7. The defendant is a first offender.
8. In addition to the summary of facts I have also had regard to the following information:
   • (a) 1. Victim Impact report;
   • (b) Pre-sentence report, and Supplementary report prepared by Probation services;
   • (c) The Prosecution’s Sentencing Memorandum, and supplementary Memorandum which annexed an affidavit prepared by Deputy Commissioner Samuelu Afamasaga concerning the prison’s practices followed for elderly prisoners with medical issues;
   • (d) The Defence Submissions on Sentencing, and supplementary submissions filed on 30 September 2021, and further supplementary submissions filed 7 October 2021;
   • (e) I have also considered the affidavit filed on behalf of the defendant, sworn 6 October 2021, and the medical reports which are exhibited.
   • (f) To the extent that they clarify or otherwise add to the written submissions, the oral submissions of counsel at the sentencing hearing.
9. Mr Rasmussen, your sentencing poses a particular challenge as to the law’s response to your admitted guilt; you raped a young girl who was living in your home, when she was aged 15 years, your niece, and you were 86 years old. Today you stand here facing something unheard of in our country, an 87 year old man being sentenced for rape.

THE PROSECUTION

10. The prosecutor submits that the sentence the defendant receives should have regard to the relevant principles in the Sentencing Act 2016 (“the Act”), in particular ss 5, 6 and 7. Section 5 provides:
    • 5. Purposes of sentencing or otherwise dealing with
    • defendants-(1) The purposes for which a court may sentence or
    • otherwise deal with a defendant are either one (1) or more of the following:
    • (a) to hold the defendant accountable for harm done to the victim and the community by the offending;
    • (b) to promote in the defendant a sense of responsibility for, and an acknowledgment of, that harm;
    • (c) to provide for the interests of the victim of the offence;
    • (d) to denounce the conduct in which the defendant was involved;
    • (e) to deter the defendant or other persons from committing the same or a similar offence;
    • (f) to protect the community from the defendant;
    • (g) to assist in the defendant’s rehabilitation and reintegration.

(2) Nothing about the order in which the purposes appear in this section implies that any purpose referred to must be given greater weight than any other purpose referred to.

11. In Samoan –
    • 5. Faamoemoega o faasalaga po o le tagofiaina i isi faiga e
    • ese ai o faasalaga o tagata ua molia-(1) O faamoemoega e mafai
    • ai e se faamasinoga ona faasala po o le tagofia i isi faiga e ese ai
    • mataupu a se tagata ua molia e mafua mai i se tasi (1) po o le sili
    • atu o mea nei:
    • (h) ia taofia ai le tagata ua molia e tali atu mo faatamaiaga ua faia i lē ua afaina ma nuu ma afioaga e ala i le faia o le solitulafono;
    • (i) ia uunaia i le tagata ua molia se agaga e faapea o ia e fitoitonu ma, faatasi ai ma se faalauiloaina o lea faatamaiaga;
    • (j) ia aiaia ai mo aia a le tagata ua afaina i le soligatulafono;
    • (k) ia tautalagia malosi ai le amioga na aafia ai le tagata ua molia;
    • (l) ia puipui mai ai le tagata ua molia po o i si tagata mai le toe faia o le soligatulafono lava lea po o se
    • (m) soligatulafono uiga tutusa;
    • (n) ia puipuia ai tagata lautele mai le tagata ua molia;
    • (o) ia fesoasoani i le toefuataiga o le tagata ua molia ma ia
    • (p) faigofie ona toe talia lelei i le olaga masani.

(2) E leai se tulaga e faatatau i le faasologa lea o lo o atagia ai faamoemoega o i lenei fuaiupu e faauigaina e faapea, e ao ona sili atu le faamamafa e ave i so o se faamoemoe o lo o faasinomia na I lo se isi lava faamoemoe ua faasino i ai.

12. The Court of Appeal in 2013 issued a guideline decision: Key v Police,^[1] in which they set out four categories or bands of offending. This Court follows this approach because of the desirability of consistency in sentencing levels and other means of dealing with like defendants comitting similar offences in similar circumstances: s. 6(e) of the Act. The bands are as follows:
    • (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.
    • (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.
13. The prosecution submits that the offending, as described above, falls into Band 3: imprisonment for a period between 14 – 20 years because the offending had aggravating features which were at a relatively serious level. These aggravating features are submitted to be:
    • (a) The vulnerability of the victim. The victim was asleep and alone when the defendant forcefully violated her. She was unable to defend herself.
    • (b) Premeditation of the offending. I interpose that whilst the existence of premeditation can be persuasive, in my view, there is not enough evidence in this case to suggest that the offending might have been anything more than opportunistic. Having carefully considered the victim impact report, there is no suggestion of previous perverted conduct on the defendant’s part.
    • (c) Breach of trust. The victim is the defendant’s grand niece and he breached the trust she had in him to look after her. I agree with the prosecutions submission that the defendant has grossly violated his niece’s trust and this violation is accepted to be an aggravating feature.
    • (d) Age difference. There is a age gap of 71 years. The victim was only 15 years old, the age of the victim and the enormous age gap is an aggravating factor.
    • (e) Invasion of privacy. Prosecution submits the defendant approached the victim in the privacy of her bed. This is a factor of the offending and I do not regard it as necessarily a stand alone aggravating feature. It is an aspect of the breach of trust and the vulnerability of the vicitm – both of which I consider to clearly be aggravating features.
    • (f) Offending in a domestic setting. The prosecution submit that this is a stand alone aggravating feature, but in my view, the domestic context of the offending is another factor which goes to the victim’s vulnerability, and the breach of trust.
    • (g) Impact of the offending on the victim. The Court is required to consider the effect of the offending on the victim under s.6(f) of the Act. I observe that the preponderance of the reports and other letters provided to the Court all focus on the defendant and his medical issues and his forgiveness, perhaps that is only natural because their focus and energy is on the defendant; but not a lot is said about the victim who appears to have relied on the charity and care of strangers through this difficult period in her life. I find this aspect troubling.
    • (h) Close familial relationship. The prosecution point to the uncle-niece relationship; this factor is relevant and therefore considered as part of the aggravating feature of breach of trust.
      
14. The prosecution submits that the only mitigating factor is the defendant’s guilty plea.
15. The Prosecution further submits that an appropriate starting point for the sentencing is 15 years of imprisonment. They make this submission on the basis that there were 2 incidents of rape. I reject the submission that this Court can sentence the defendant with respect to a charge to which he has not pleaded. The defendant was charged with two counts of rape but one was withdrawn by leave and the defendant consequently pleaded guilty to the one remaining charge of rape. A starting point uplift to reflect a charge which has been dismissed is wholly inappropriate. I also reject the prosecution’s submission of a 15 year starting point because in my view the prosecution has erred in its assessment of the relevant band that might be applicable. This is not a band 3 case.

THE DEFENCE

16. The defendant is ably represented by counsel, Ms Taimalelagi. She has filed strong and well reasoned submissions on his behalf.
17. Ms Taimalelagi refers the Court to the NZ Court of Appeal’s decision in R v AM [2010] NZCA 114. R v AM has been endorsed by our Court of Appeal in Key v Police.
18. In defence, Ms Taimalelagi sets out the following factors which she submits as mitigation.
    • (a) There is nothing to suggest that there was further violence in addition to the violence of the rape itself. In my view, whilst I agree there is no evidence of other physical violence, the defendant admitted sucking the victim’s breasts and performing oral sex on her not once but twice. Those uninvited actions amount to instances of violence in addition to the violence of the rape itself.
      • (b) Ms Taimalelagi’s submissions refer to the defendant’s personal mitigating features, and these include:
        • (a) Remorse and reconcilliation, with the victim’s mother;
        • (b) You have been up until this time a person of good character and not previously offended against the law.
        • (c) The defendant’s age and physical ailments. I note my agreement with the proposition that old age is a mitigating factor, particularly when combined with ill health as the basis upon which the Court may impose a sentence which is significantly shorter than otherwise might be the case.
        • (d) There has been significant impact on the defendant’s family. Ms Taimalelagi urges that he should be given a deduction for the impact on the family. I agree with this submission. They have had to come to grips with the occurence of very serious criminality late in your life. The defendant’s offending must have been devastating to all who knew him and no doubt feel betrayed by his actions.
        • (e) Village penalties. The defendant and his family have satisfied the village penalties imposed by both of his villages. They have presented money, fine mats and food in the amount of ST$10,000 to one, and money, fine mats and food to the other village (value of which is not disclosed).
        • (f) He has been banished from his Church.
        • (g) Early guilty plea.
19. Ms Taimalelagi submits that the defendant’s case is properly seen as a Key Band 2 case, with an appropriate starting point of 14 years.

Starting Point

20. The correct sentencing approach in this case is to recognise that the penalty for rape is imprisonment.
21. Respectfully, I consider the prosecution to be in error in its submission that this is a Band 3 case. The submission is based on an incorrect reading of the Court’s reasoning in R v AM that our Court of Appeal in Peti has endorsed. The NZ Court of Appeal decision referred to Band 3 cases as covering the following types of cases:
    • [105] This band will encompass offending accompanied by aggravating features at a, relatively speaking, serious level. Rape band three is appropriate for offending which involves two or more of the factors increasing culpability to a high degree, such as a particularly vulnerable victim and serious additional violence, or more than three of those factors to a moderate degree. Particularly cruel, callous or violent single episodes of offending involving rape will fall into this band as is demonstrated
22. Examples of Band 3 cases are:
    • (c) R v Amohanga: O, 17, rang V’s doorbell one evening inquiring about an address. V, 77, answered in her nightgown and gave him the information. O then went to the back of the house, took a screwdriver from the garage and entered the house through a window. He beat V with the screwdriver, causing extensive bruising and a cracked rib, demanding money and threatening to kill her, then raped her. V was left with partial deafness in one ear.
    • (d) R v Singh: O violently assaulted a man and then forced him and a young woman to watch as he violently and repeatedly raped the man’s mother over a period of more than twelve hours. This included at one stage loading a gun and putting it in her vagina.
23. The facts in this case, recited earlier, do not easily compare, if at all, with the gravity of seriousness of the factual scenarios in the examples noted. Rather, in my view, the facts of this case are comparable with Band 2 cases. The R v AM rationale for Band 2:
    • [98] By comparison with rape band one, this band is appropriate for a scale of offending and levels of violence and premeditation which are, in relative terms, moderate. This band covers offending involving a vulnerable victim, or an offender acting in concert with others or some additional violence. It is appropriate for cases which involve two or three of the factors increasing culpability to a moderate degree.
24. As I have noted earlier, there are two aggravating features of this offending which make it suitable to be categorised as a Band 2 case – the vulnerability of the victim and the gross breach of trust. Concerns for the victim’s young age and age difference inherently influence the conclusions that the victim was vulnerable and that there was a gross breach of trust.
25. I consider that the correct starting point in this case is a sentence of 12 years imprisonment. Band 2 is concerned with vulnerable victims and where there is no additional violence. As the Court of Appeal has previously noted: the seriousness of the rape increases as the degree of violation increases for example, use of a finger as opposed to a fist, or very brief penetration as opposed to a lengthy assault. Further, the more force involved in the actual violation the more serious the offending will be: Fetuao v National Prosecution Office [2016] WSCA 10, at the Appendix.
26. The details of the offending appear to suggest that there was only a moderate amount of force used, with the summary of facts recording that the defendant held the victim down with his free hand. Although the nature or circumstances of the penetration are not the subject of submissions, the age of the defendant and his medical conditions outlined in the Doctor’s reports suggest that it is extremely unlikely to have been a lengthy assault.
27. The Court will from the 12 year starting point make appropriate deductions as submitted on behalf of the defendant.
28. At paragraph 2 of Ms Taimalelagi’s submissions, she sets out a number of deductions, which she invites the Court to consider. These are :
    • (a) A deduction of 12 months for remorse and reconcillition;
    • (b) Deduction of 18 months for previous good character and lack of previous convictions;
    • (c) Deduction of 36 months for old age and ill health;
    • (d) Deduction of 6 months for impact on family;
    • (e) Deduction of 6 months for village penalties;
    • (f) Deduction of 12 months for village and church banishment;
    • (g) A final further discount of 30 percent for early guilty plea.
29. I agree with most of Ms Taimelelagi’s submission, with the following exceptions:

.(a) I would not give the deduction of 12 months for remorse and reconcilliation. A deduction for remorse is already provided for in the significant discount for the early guiltuy plea. However, whilst I expect that the defendant will no doubt be remorseful, it appears from all that I have read, it is remorse for himself that he is facing this major event in his life at this stage in his life. I do not discern remorse for what he has done to the victim and what has happened to her. I also consider that the reconcilliation which is said to have occurred is something which has happened between adults; I am not aware of any step towards an apology to the victim. On the contrary, the Probation officers report dated 12 August 2021 notes something in the nature of victim blaming on the defendant’s part.

.(b) I would also not give 12 months deduction for village and Church banishment, but 6 months instead. This is because the 12 months deduction is excessive in the circumstances. The defendant should not be rewarded for complying with his customary obligations, and I do not consider it appropriate that the criminal justice process should make an allowance which could be considered compensation for banishment.

30. After the deductions, the sentence would be reduced by 72 months (6 years) to 6 years. I would also deduct discount of 30% or 4 years for his early guilty plea, and this would leave an end sentence of 2 years.
31. The NZ Court of Appeal in M v R considered that whether a discount is appropriate and the amount of the discount is a matter of fact and degree and turns on the particular circumstances of the case.
32. Ms Taimalelagi in submissions dated 6 October 2021 referred to the comparatively poor state of Samoa’s prisons and the victim’s views should form part of those particular circumstances of the case. I reject the submission.
33. I note Dr Sirene Vagana- Emanuelle, Medical Officer, appears to suggest that all the defendant’s blood tests were within normal limits, presumably of someone your age. Further, it is said that in your follow up visit he was well, walked into consultation room and had nil complaints with his vital checks range in his normal.
34. I am satisfied that the Prison Authorities will be able to provide you with humane treatment should you be unwell. I refer generally to Deputy Commissioner Samuelu Afamasaga’s affidavit dated 6 October 2021, and in particular paragraphs 15 and 18.
35. I have also paid particular attention but there is no mention of any underlying mental health issue in any of the medical reports provided. There is perhaps an eating problem which might be considered a disorder, but nothing which should provide an exception to the general principle outlined below - whilst illness is relevant and might lessen the penalty it does not permit a non-custodial sentence in a serious case such as this. I note that you are said you need to urinate often at night. This is something which should be adequately managed by the prison staff.
36. Ms Taimalelagi urges that the interests of justice would be served by a non custodial sentence. I respectfully disagree. The normal and usual sentence for persons convicted of the heinous crime of rape is imprisonment, normally for significant periods measured in many years. I apply the principle which this Court referred to in Police v Samau [2010] WSSC 163 – whilst ill health or disability is relevant to sentence, it is not a licence to commit crime and it will not allow an offender to escape punishment for serious crime.
37. It is now about 6.5 months since the defendant offended by raping the young girl. She will carry the scars of what the defendant has forced on her for the rest of her life. Her life has been forever changed by what he has done. It is not the Court but to the victim that the defendant should seek forgiveness. At some point, the defendant should offer the victim an apology, a genuine apology, and tell her that it was not her fault.
38. I sentence the defendant to a period of imprisonment of 2 years, less any time which may have already been spent in custody. It could have been considerably longer, but for my assessment of the circumstances of the defendant’s age and health issues. I have considered other sentencing options, including community detention, but given the seriousness of the offending involving an old man who should know better and his young family member whom he should be protecting, a deterrent sentence is important to send potential perpetrators that the Court takes very seriously its responsibility of protecting the community from predatory offending.

CHIEF JUSTICE

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^[1] [2013] WSCA 03