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Police v Utuvai [2008] WSSC 50 (21 July 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

MULIMULI UTUVAI
male of Vailuutai.
Accused

Counsel: A Lesa for prosecution
F Vaai-Hoglund for accused

Sentence: 21 July 2008

SENTENCE BY SAPOLU CJ

The charges

1. The accused appears for sentence on the charge of rape which carries a maximum penalty of life imprisonment and the charge of having indecently assaulted a girl over the age of 16 years which carries a maximum penalty of 5 years imprisonment. To both charges the accused pleaded not guilty. A trial was then held before Vaai J and a panel assessors in 2005. However, that trial ended in a mistrial. The case was then adjourned for a second trial. At the second trial, the accused was found guilty of both charges by a different panel of assessors and he is now appearing for sentence.
   

The offending

1. The victim is now over 20 years old but was just more than 16 years old at the time of the present offences in 2004. The accused, on the other hand, is now about 3 weeks short of 29 years but was 25 years old at the time of these offences.
   
2. At the material time, the victim was a student at the Aana No.1 secondary school. The accused who is a school teacher by profession was a teacher at the same school.
   
3. On Wednesday afternoon 3 November 2004 after school, the accused instructed the victim to go to the boys toilet at the school compound. He then followed the victim into the toilet and locked the door. He kissed the victim, opened her shirt, touched her breasts, pushed her down on to the floor, and pulled down her panties. When the victim screamed he covered her mouth with one of his hands. He then had sexual intercourse with her.
   
4. After the first sexual intercourse, the accused stood up and light a half cigarette which he smoked. At that time the victim was still lying down. She felt numb and her private part was painful. After the accused finished smoking his half cigarette, he had sexual intercourse with the victim again. The accused then threatened the victim if she ever told anyone about what he had done to her.
   

The victim

5. As earlier mentioned, the victim was just more than 16 years old at the time of this incident and was attending Aana No.1 secondary school. She is no longer attending school.
   

The accused

6. As also mentioned earlier, the accused is now about 29 years old but was 25 years at the time of this incident. He was a school teacher at the same school attended by the victim.
   
7. As it appears from the pre-sentence report, the accused attained a good level of education and had been a school teacher for eight years. So he should have known that what he did to the victim was wrong and unlawful.
   
8. In 2006 after the mistrial in this case in 2005, the accused was convicted of the offences of giving false information, bribery and attempting to bribe. In reply to a question from the Court, counsel for the prosecution said that those convictions were in relation to this case. Thus the offences on which the accused was convicted in 2006, were committed after the offences for which he is now appearing for sentence. This is plainly no sign of remorse in relation to the charges for which the accused is now appearing for sentence.
   
9. The accused’s plea of not guilty and his unwillingness to reconcile with the victim because of his not guilty plea as noted in the pre-sentence report are further signs of his lack of remorse.
   
10. What happened in this case was also a clear abuse by a school teacher of a student’s trust in him. The accused evidently took advantage of his position as a school teacher to rape the victim.
    

Aggravating features

11. The abuse of trust involved in this case, the use of force, the use of threats if the victim told anyone what the accused had done to her, and the young age of the victim are all aggravating features. What the accused did is also likely to have a psychological impact on the victim for a long time, if not for the rest of her life.
    

Mitigating features

12. There are no mitigating features in this case. The accused’s conduct following this incident shows a total lack of remorse.
    
13. Even though the accused had no conviction prior to the commission of these offences, it appeared from the evidence of the school teachers who were teaching at the Aana No 1 secondary school at the same time as the accused, that the accused’s conduct as a teacher was not exemplary. The accused was not always punctual.
    
14. I have also decided that any credit for the accused due to the fact that he had no conviction prior to these offences is cancelled out by the other factors especially his total lack of remorse.
    

The decision

15. Considerations of retribution, deterrence and the protection of the community must take priority over considerations of rehabilitation in this case. Not only should the sentence to be imposed convey the community’s denunciation of the type of conduct committed by the accused, but it should also serve as a special deterrence to the accused and as a general deterrence to like minded people.
    
16. As a starting point for sentence on the charge of rape, I will take 8 years. I have decided not to reduce or increase the starting point for sentence because of any personal circumstances of the accused. The accused is therefore convicted and sentenced to 8 years imprisonment on the charge of rape.
    
17. On the charge of indecent assault which carries a maximum penalty of 5 years imprisonment, the accused is convicted and sentenced to 2 years imprisonment.
    
18. Both sentences to be concurrent.
    

CHIEF JUSTICE

Solicitors
Attorney-General’s Office, Apia, for prosecution
Vaai Law firm, Apia, for accused