Police v Brown [2024] WSSC 74 (27 August 2024)

IN THE SUPREME COURT OF SAMOA
Police v Brown [2024] WSSC 74 (27 August 2024)

Case name:	Police v Brown
Citation:	[2024] WSSC 74
Decision date:	27 August 2024
Parties:	POLICE (Informant) v NAUMATI MANUELE BROWN (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Perese
On appeal from:
Order:	The defendant is sentenced to 20 years and 6 months, less time served. His name is to be entered on the Sex Offender Registry.
Representation:	L. Strickland for Prosecution S. Ponifasio for the Defendant
Catchwords:	Rape – incest – rape sentencing bands – custodial sentence.
Words and phrases:
Legislation cited:
Cases cited:	FT v Police [2023] WSCA 5; Key v Police [2013] WSCA 3; R v AM [2010] NZCA 114; [2010] 2 NZLR 750.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

NAUMATI MANUELE BROWN, male of Puapua, Fasitoo-uta

Defendant

Counsel: L. Strickland for Prosecution
S. Ponifasio for the Defendant

Date: 27 August 2024

RESERVED SENTENCING JUDGMENT OF PERESE CJ

1. Mr Naumati Manuele Brown (“Naumati”) has been found guilty of raping his biological daughter Sanarosa Manuele (“Sanarosa”) multiple times between December 2014 and 1 January 2018. At the time the offending starting, the victim was only 15 years of age. There are six instances of offending:

Information nos.	Time	Particulars
Offending 1
1508/18	Between 31 May 2015 – 1 October 2015	Offending in the home, when the defendant came home from work at midnight. The complainant alleged the defendant choked and raped her while she was sleeping alongside her mother and sister.
Offending 2
1475/18	Between 31 December 2014 and 1 January 2018	A week after offending 1, the defendant approached the complainant in the morning and he raped her, after the complainant’s mother had gone to work.
Offending 3
1517/18	Between 31 December 2014 and 1 January 2018	The offending of rape alleged to have taken place in the togavao between June 2015 and October 2015, and after the alleged Offending 1 and 2, above.
Offending 4
1509/18	Between 31 March 2016 and 1 January 2017	Ongoing incidences of rape between April 2016 – December 2016 in the togavao on the way to the shops.
Offending 5
1510/18	Between 31 December 2016 and 1 June 2017	Rape throughout the 2017 period resulting in pregnancy.
Offending 6
1511/18	Between 31 July 2017 and 1 December 2017	Rape. Resumption of incidences following miscarriage of victim’s pregnancy from Offending 5.

2. Mr Brown appears today for sentence.
3. The facts of the case are set out in some detail in my reserved judgment delivered on 27 June 2024. Mr Brown was immediately remanded in custody. His offending was premeditated, and a gross abuse of his daughter’s trust.
4. The Police and counsel for the defendant agree that this case falls within band 4 of the sentencing bands identified by the Court of Appeal in Key v Police [2013] WSCA 03. It is noteworthy to set out what the Court had to say at :
   • [30] Accordingly, we propose to set out the bands contained in R v AM as appropriate for Samoa, with an uplift that reflects factors specific to the jurisdiction of Samoa. As with R v AM, we have allowed an overlap to create necessary flexibility. The bands we adopt 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.
     • 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.
   • [31] We have not set out above the full R v AM definitions of the bands. Rather we have expressed this in a shorthand manner. But the bands should be read as subject to, and incorporating paras [93], [98], [105], [108] and [109] of that. decision.
5. R v AM is a decision of a full bench of the New Zealand Court of Appeal and is cited at [2010] NZCA 114; [2010] 2 NZLR 750. The Court held that Rape band four refers to offending which is towards the higher end of rape band three, but becomes a band four matter because it involves multiple offending over considerable periods of time rather than a single instance of rape. At paragraph [109] of the R v AM judgment, the Court held:
   • [109] Perhaps the paradigm case of offending within this band is that of repeated rapes of one or more family members over a period of years as is illustrated by the present case. Offending of this nature, especially that involving children and teenagers will attract starting points at the higher end of this band as indicated by the authorities discussed in R v S (CA64/06)¹⁰⁰ and R v Proctor.¹⁰¹ Gang or pack rape is another situation which is likely to fall within this band.
6. The Prosecution points to the following aggravating features:
   • (a) The offending involved family members;
   • (b) There were multiple incidents across years;
   • (c) The offending was carried out with the use of threats of violence;
   • (d) The victim was 15 years old when the offending first occurred, and the accused was about 41 years old;
   • (e) There was a grave breach of trust;
   • (f) Premeditation was involved in the offending. Some of the offending happened when the victim’s mother had gone to work. Some of it happened in the togavao when the defendant took the victim shopping.
   • (g) The impact of the offending on the victim can be seen from the victim’s statements which describes how the offending affected her physically and mentally. She wrote:
   • O le taimi nei, o lo’o ou faalogoina lava le pepē o o’u tino, tiga totonu o lo’u manava, ae o isi taimi ua tau le kilia la’u vaai. O le taimi nei foi e le mafai ona galo le mea a lo’u Tama lea sa fai i a te a’u, ae fai ana mea leaga i a te a’u.
7. Defendant’s counsel acknowledges these aggravating features.
8. Ms Ponifasio submits there are three mitigating features relating to the offender:
   • (a) He has previous good character;
   • (b) He was banished from his wife’s village of Fasitoo-Uta;
   • (c) He was the breadwinner of the family providing financial support for his children to ensure they could continue their schooling, and he provided with necessities.
9. The Probation Service pre-sentence report discusses that the Defendant came from a family which was reliant on income from the sale of copra and cocoa. He left formal education at College in about year 10 and started working on his family’s plantations. Most recently the defendant had been working at a Funeral Home.
10. It is normally the case that letters, which independently support a defendant’s good character are provided to the court by Probation Services, attached to the pre-sentence report. Typically, the defendant’s spiritual leader provides a testimonial, and I note the defendant claims to be a member of the Mormon Church; the village mayor also provides a testimonial; and if the defendant is employed, the employer sometimes provides a letter of support. No such letters have been provided by either Probation Services or the defendant himself.

The Sentence

11. The Police refer me to a number of authorities including the decision of His Honour Justice Nelson in Police v Falealo involving a defendant who raped his step daughter four times over a period of a few months between November 2022 and January 2023. His Honour settled on a starting point of 18 years (top end of band 3) because he did not consider there was a high degree of violence accompanying the rapes and because the offending occurred over a relatively short period. But that is not the case in this matter.
12. The intrinsic seriousness of this offending, involving multiple counts of rape of a family member in a household context over a period of years is clearly a band 4 case. The Court of Appeal recognised in the sentencing appeal FT v Police [2023] WSCA 5, although there is a grave need for denunciation and deterrence of these types of offences, the appropriateness of a starting point is a point of principle that the court must decide.
13. The starting point in this case must in my view be a little higher than in similar sexual offending cases, such as Police v Faatauvaa where the court began with a starting point of 20 years in relation to offending which involved 5 counts of rape of a young family member over a five-year period. Here the offending also spanned a period of years, but it involves 6 counts of rape. The offending warrants a slightly increased starting point of 21 years.
14. The defendant as a first offender is entitled to a discount for his previous good behaviour and I allow a discount of 6 months. Beyond that the cupboard is bare. The defendant continues to deny the offending and offers no expression of remorse. Ms Ponifasio submits the defendant was banished from his wife’s village. Banishment as a punishment may be taken into consideration by a sentencing judge. However, there is no credible evidence that may be relied on as support for that submission. Indeed, the defendant gave evidence that he had not been banished at all, but left the village of his own accord. The defendant is not entitled to any other reduction in sentence.
15. The defendant is sentenced to 20 years and 6 months, less time served. His name is to be entered on the Sex Offender Registry.

CHIEF JUSTICE