Police v PP [2022] WSSC 39 (23 June 2022)

IN THE SUPREME COURT OF SAMOA
Police v PP [2022] WSSC 39 (23 June 2022)

Case name:	Police v PP
Citation:	[2022] WSSC 39
Decision date:	23 June 2022
Parties:	POLICE (Prosecution) v PP (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Leilani Tuala-Warren
On appeal from:
Order:	For each count of rape, the accused is convicted and sentenced to 19 years imprisonment, to be served concurrently. Any time spent in custody to be deducted. 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:	T. Sasagi for Prosecution M. Tuimalealiifano for the Accused
Catchwords:	Sexual violation – familial relationship with the victim – victim a minor – rape – occurred multiple times – first offender – vulnerability of victim – huge age disparity – gross breach of trust – predatory behaviour – pre-meditation – early guilty pleas entered – apology to victim and mother – remorse – rape (sentencing) bands – rape band four – very high level of culpability – custodial sentence.
Words and phrases:
Legislation cited:	Crimes Act 2013, ss. 49(a); 52(1); Sentencing Act 2016, ss. 7(3); 56;
Cases cited:	Key v Police [2013] WSCA 3; Police v Filipo [2011] WSSC 127; Police v Pauesi [2008] WSSC 23; R v AM (CA 27/2009, CA 32/2009).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E

Prosecution

A N D

PP
Accused

Counsel: T Sasagi for Prosecution

M Tuimalealiifano for the Accused

Sentence: 23 June 2022

SENTENCE

The Charge

1. The accused appears for sentence on twelve counts of sexual violation pursuant to s 49(a) and s 52 (1) of the Crimes Act 2013 which carries a maximum penalty of imprisonment for life.
2. He pleaded guilty to the charges on 15 November 2021.

The offending

3. The Prosecution summary of facts admitted by the accused says he is the uncle of the victim, being her mother’s brother. The victim was 8 years old and was not attending school at the time of the offending. She was placed under the protection of Samoa Victim Support Group where she still is currently.
4. From 1 May 2020 to 31 January 2021, the accused would approach the victim while their whole family is asleep. He would then rape her, cover her mouth and tell her not to say anything otherwise he would fasi her. The first time it happened, blood came out of her vagina. She felt pain in her vagina each time it happened. This occurred to her 12 times. After the 12th time, her period stopped and she felt pain in her stomach. She then told her grandparents about what had been happening.

The accused

5. As shown in the pre-sentence report, the accused is 38 years old. He is a single father of one child. He was a plantation labourer in Upolu and visited his family in Savaii during his time off from work. It was then that these offences took place.
6. His sister in law told Probation that when the accused visits Savaii, he would drink in his room and be intoxicated most of the time. She is concerned for the safety of their young daughters and asks the Court for an imprisonment term. She says that the whole family was banished from the village when this matter came to light. They have now been reinstated upon payment of $500 village fine.
7. The accused says of the offending that he was mainly under the influence of alcohol. He told Probation that he would prey upon the victim by being close to where she slept at night and would use every opportunity to sexually violate her.
8. He is a first offender.

The victim

9. The victim is now 11 years old. She is currently under the care of Samoa Victim Support Group.
10. In her VIR, she says that every time he did what he did to her, she felt pain in her vagina and she would try to bear with it because she was so afraid of him as he was telling her not to tell anyone. She says she bled each time he had sex with her. She says because she did not know how to react, she thought this was normal within families because of the multiple times he did this to her. She does not want to see him ever again. She says she now realises that what he did to her was not normal and was wrong.

Aggravating features of the offending

11. Age of the victim (8 years), the impact of the offending on her, her vulnerability, the age gap between the accused and the victim, the familial relationship and gross breach of trust are all aggravating features of the offending. There was also threatening words on at least two occasions (second and third incidents). Rape is inherently violent but he also squeezed her mouth with his hands on at least three occasions (first, second and fifth incidents).
12. The impact of the offending on the victim as in the VIR. She now no longer lives with family. During each offending, the victim felt pain in her vagina. The first time it happened she felt blood coming out of her vagina as she was still a virgin and this was the first time that she had been violated.
13. The victim was only 8 years old. She is a child who had been forced to have sex multiple times over a period of 9 months. This is deplorable at the highest level. Those 9 months would have been terrifying and extremely traumatic for this child.
14. The accused is her uncle and therefore in a position of trust in relation to this child victim. He breached that trust over and over again when he raped her, twelve times. This happened in the home which she shared with her grandparents, the parents of the accused.
15. According to the accused he preyed on the victim by ensuring he was close to where she slept so he could have sex with her. This predatory behaviour is an aggravating factor. It also suggests a high level of premeditation which is another aggravating factor.

Mitigating Factors

16. First of all, section 7 (3) of the Sentencing Act 2016 provides that the Court must not take into account by way of mitigation the fact that the defendant was at the time of committing the offence, affected by the voluntary consumption or use of alcohol.
17. I take into account in mitigation that the accused entered early guilty pleas, his good character prior to offending as he is a first offender, the apology to the victim and her mother, and his remorse as conveyed by Defence Counsel.

Discussion

18. The charge of rape carries the highest penalty available under the criminal law and that is imprisonment for life. In Police v Filipo [2011] WSSC 127, the Court stated;
    • Rape is one of the most serious crimes as stated in the legislative provisions of most societies and was always regarded as such at common law. The reasons are self-evident.
19. Vaai J in Police v Pauesi [2008] WSSC 23 (9 May 2008) remarked about sentencing for rape offences;
    • In considering the sentence for sexual offences, particularly rape, the primary consideration is a term of imprisonment. There should be an element of deterrence to reflect the gravity of the offence to punish the offender, to deter the offender and to deter other like-minded people. The sentence is also to convey condemnation by society of such criminal conduct.
20. 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.
21. 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.
22. Prosecution has submitted that a starting point for imprisonment should fall within the higher end of Band four (19 years to life) at 25 years.
23. Defence Counsel submitted this offending fell within Band one (8-10 years). She was given an opportunity to make submissions on Band four given the seriousness of the offending. Supplementary submissions for the accused suggest that a starting point at the lower end of band four being 19 years imprisonment is appropriate.
24. In determining a 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. The Court provided two sets of guidelines to assist in determining the starting point.
25. Of more relevance and application (but to be read in conjunction with R v AM) is the case of Key v Police [2013] WSCA 3 (28 June 2013) where the Samoa Court of Appeal found it appropriate to issue 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.
26. 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).
27. 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”.
28. In assessing culpability to determine a starting point in the case before me now, I take into account that this offending occurred multiple times to this child victim. She was raped by her uncle within her home. She had to leave her family and be placed under the protection of Samoa Victim Support Group where she currently resides. She suffered physically and mentally from this offending, and this is something that will most likely affect her for the rest of her life
29. I assess his culpability to be very high.
30. 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 rape band four (19 years-life) where there is multiple and repeat family offending, and aggravating features at a serious level.
31. I therefore take 32 years imprisonment as the starting point for sentence. I deduct 3 years for his previous good character and one year for his apology and remorse. I deduct 9 years for his early guilty pleas.
32. I consider the totality of offending where I am imposing sentences of imprisonment for two or more offences so that the individual sentences reflect the seriousness of each offence. (s 56 Sentencing Act 2016).

The result

33. For each count of rape, the accused is convicted and sentenced to 19 years imprisonment, to be served concurrently.
34. Any time spent in custody to 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 and any details that might identify her. The suppression order does not relate to the defendant.

JUSTICE TUALA-WARREN