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Police v Filipo [2011] WSSC 127 (1 November 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

FAAFOUINA FILIPO, male of Lona Fagaloa
Defendant

Presiding Judge: Justice Slicer

Counsel: G Patu, L Su'a-Mailo and P Valoia for the prosecution
R Papalii for the defendant

Hearing: 11 – 12, 16 August, 14 and 21 October 2011

Sentencing: 1 November 2011

Charge: Rape (x 3)

REASONS FOR JUDGMENT and SENTENCE

1. The Court is required to determine the appropriate sentence in two cases involving the rape of a child aged 6, at the time of the offence, and an older girl aged 15, at the time of the hearing. There are some matters common to both cases but significant differences in the form of the rapes, the ages of the victims and the relationship between the girls and the offenders. The cases will be considered separately but some general principles are common and will be dealt with in these Reasons for Judgment.
   
2. In its helpful written submissions made by the prosecution, the commencing points for the sentence were submitted to be twenty-five and twenty years respectively. The Court, itself, raised a number of matters seeking to identify the general principles governing the appropriate range of sentences applicable to this serious crime in order to deal with questions of parity and consistency.
   
3. These Reasons for Judgment are intended to apply to both cases namely, Faafouina Filipo and Amosa Sione. In each case the identities of the victims and their villages have been suppressed.
   
4. It is not necessary to repeat the general principles discussed in these reasons in each case. The primary judgment will be that of that of Filipo since his conviction followed a verdict returned by Assessors and the degree of culpability, a consequence of the community's finding rather than that of a judicial officer.
   
5. Matters specific to each case will be separately stated in each judgment.
   

GENERAL PRINCIPLES

6. Rape is one of the most serious crimes stated in the legislative provisions of most societies and was always regarded as such at Common Law. The reasons are self-evident within every society. Russell in his Treatise on Crimes and Misdemeanours, (1875) 5 Ed. p858 records:
   

"Anciently indeed it rape to have been treated as a felony, and, consequently, punishable with death; but this was afterwards thought too hard; and, in its stead, another severe but not capital punishment was inflicted by William the Conqueror, namely, castration and loss of eyes which continued til after Bracton wrote, in the reign of Henry III."

7. In my judgment, R v S [1991] Tas. R 273, I referred to the reign of the Saxon King Athelstan and reviewed the subsequent history through Hale (1 PC 628), Lord Leigh's Case (1676) 3 Keible 433, Clarence [1888] UKLawRpKQB 175; (1888) 22 QBD 23, Jackson [1891] 1 QBD 21, into New Zealand, English and Australian cases in the late 20th Centuries and it is unnecessary to repeat that history. Suffice to say that by the mid-19th Century, English Courts were empowered to impose a sentence of 'penal servitude for life' (Acts 24 and 25, Vict. s48), although such a sentence was not mandatory.
   
8. It was that model which was adopted by the New Zealand and entered the Samoan law through enactment of the Crimes Ordinance 1961 section 47. However the New Zealand equivalent legislation section 128 (2) provided:
   

"Everyone who commits rape is liable to imprisonment for a term not exceeding 14 years."

(See: Criminal Law in New Zealand, Garrow & Caldwell, 6 Ed. 111 – 112).

9. The New Zealand Parliament increased the penalty to twenty years imprisonment through the Crimes Amendment Act (No. 2) 1993 section 2, which came into force on 1 September 1993. The punishment for a rape or sexual violation committed during a home invasion was further increased to a maximum of 25 years imprisonment by virtue of the insertion of the Crimes (Home Invasion) Amendment Act 1999 section 2.
   
10. The operation of the 1993 Amendment was considered by the New Zealand Court of Appeal in R v A [1994] 2 NZLR 129, and R v P (1993) 10 CRNZ 251. In the former case, the Court of Appeal, comprising five Judges, was asked to provide general guidance on the approach to the new sentencing regime which was more in line with the original approach taken by Samoa in its 1961 Ordinance. In its judgment, delivered by Cooke P., as he was then, the Court accepted the right of Parliament to deal with either an increase of punishment in the event of prevalence of criminal conduct or a change in the community's response to an identified problem. The learned President stated at 131:
    

"No matter whether or not the new English legislation affects rape sentencing there, the New Zealand approach must be significantly influenced by the decision of our Parliament to raise the maximum sentence for sexual violation to 20 years. Sentencing is a field in which there is genuine room for differences of informed opinion, but it is well established that the Courts should have regard to a policy of our Parliament evinced by an increase in the maximum penalty for particular offences: R v Spartalis [1979] NZCA 43; [1979] 2 NZLR 265. This is now called for in the field of sentencing for sexual violation."

11. The Legislative Assembly of Samoa abolished the death penalty for the crimes of murder and treason through the passage of the Crimes (Abolition of Death Penalty) Amendment Act 2004. It substituted a mandatory life sentence for the crimes of murder and treason. There were no amendments to the permitted penalty for the crime of rape, which remained at a maximum of non mandatory life sentence.
    
12. The Ordinance section 47 (2) provides:
    

"...everyone who commits the crime of rape is liable to imprisonment for life."

whilst sub-section (3) provides a liability 'to imprisonment for a term not exceeding 10 years' in cases of attempted rape.

13. The Samoan Courts have always given effect to that guiding principle, as stated by Cooke P.
    
14. In R v Hapi [1995] 1 NZLR 257, the New Zealand Court of Appeal had cause to consider the power given by Parliament to the Courts to impose 'minimum terms of imprisonment in indeterminate sentences as punitive and denunciatory.' In upholding a minimum period of 15 years of imprisonment in a serious case involving the rape on an elderly woman, late at night in her own home, the then Chief Justice added that the Court regarded it as representing the top of the range available to a Judge. In the later case of R v Thompson (1996) 13 CRNZ 581, the same Court differently constituted rejected that approach. In a joint judgment, Lord Cooke referred to Hapi (supra), stated at 585:
    

"That was not a case of serial crimes, however, so it was not intended to and does not provide assistance on what might be a permissible range in this class of case. Nor is the judgment authority for any proposition that what are there described as incidental by-products are not among the legitimate considerations to be weighed by a sentencing Judge in deciding on the justified minimum term. While the Hansard Reports (532 NZPD 12,859; 535 NZDP 15,548, 15,706, 15,915) do reveal an increasing emphasis, in the debates, on the need to meet public demands for denunciation and punishment for particularly horrendous crime, the comprehensive terms of the section enacted by Parliament certainly do not rule out other considerations. But when considering the protection of the public a sentencing Judge can properly take into account that 10 years or more later the Parole Board, with up-to-date reports, may well be in a better position to assess any risk then continuing than the Judge can be at the time of the sentencing."

15. In Thompson (supra), Cooke P. as he then was, considered the interrelationship of a minimum sentence and the operation of Parole Boards, a matter relevant to this case and which will be here later considered. The learned President stated at 587:
    

"We accept that future Parole Boards might require unusually firm evidence before releasing serial rapists who are subject not only to preventive detention but also to judicially-imposed minimum term periods. They could rightly see it as a severe responsibility, justified only in the clearest cases. But we think that the public interest does require special caution in considering the possible release on parole of serial sex offenders. The power available under s97(5) and (9) somewhat softens the hardness of a minimum term of 25 years. Obviously a Parole Board would be most hesitant before exercising it. The fact that the Court of Appeal or the sentencing Judge had drawn attention to the power would nevertheless underline that it is available in a sufficiently clear case."

16. The effect of the legislative amendments was a general increase in the length of sentences imposed in rape cases (see: R v Criminal Appeal, 23 May 1995 C.A. 492/94, R v Collie, 19 May 1995 C.A. 11/94, R v Johnston¸ 20 March 1995 C.A. 402/94 and Hapi (supra)) but in none was a commencing point of twenty years used.
    
17. In R v Millberry [2002] EWCA Crim 2891; [2003] 2 All E.R. 939, the United Kingdom Court of Appeal attempted to provide guidelines on appropriate sentences for rape. In a unanimous judgment given by Lord Wolf, the Court revisited an earlier case of R v Billam [1986] 1 All E.R. 985, which itself had attempted to provide earlier guidance on sentences appropriate for rape. Billam has been referred to with approval by the New Zealand and Australian Courts (R v A (supra), Jones [1999] TASSC 30 (see generally: Sentencing in Tasmania 2 Ed. Warner 1.212, 11.402 – 3, 11.407)). Guideline judgments have been in common use in New South Wales (R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209, Attorney-General's Application (No. 1) [1999] NSWCCA 435; (1998) 48 NSWLR 327), although the High Court of Australia has disapproved of quantitative guidelines and 'tables of future punishments' in the absence of statutory authority (Wong v R [2001] HCA 64; (2001) 207 CLR 584). But such forms of judgments are guides only.
    
18. The Courts in Samoa have followed the New Zealand approach in attempting to fix a starting or commencing point but such is simply a guidance to test whether the resulting sentence actually imposed properly takes into account mitigating and aggravating factors. As Gaudron, Gummon and Haynes JJ. observed in Wong (supra) at par. 81, 82:
    

"Questions of this kind are not often asked if there is no relevant constitutional limitation on judicial power. It is, thus, not surprising that they are questions that have not been considered directly in England. This is notwithstanding the English Court of Appeal having given judgments for more than twenty years which were intended to guide the future exercise of sentencing discretion by stating either the level or the range of sentence that would ordinarily be imposed in certain circumstances (143). But they are questions that have been considered by the Supreme Court of Canada in R v McDonnell. The majority of the Court (Lamer CJ, Sopinka, Cory, Iacobucci and Major JJ) held that not characterising an offender's conduct according to judicially created categories of a particular statutory offence was not an error of principle. Particular categories of the offence of sexual assault had been specified in a 'starting point judgment' given by a provincial Court of Appeal. The minority of the Court (La Forest, L'Heureux-Debé, Gonthier and McLachlin JJ) considered that the 'starting point' approach to sentencing did not violate the Canadian Charter of Rights and Freedoms and did not amount to the judicial creation of a new offence. It was, in the minority's view, no more than a tool for assessing whether a particular sentence is manifestly excessive or inadequate (or, in Canadian terms 'demonstrably unfit').

What is important for immediate purposes is, however, not the detail of the particular debate that is reflected in the reasons of the members of the Court in McDonnell. What is significant is that the immediate focus of that debate was on the distinction between the judicial and the legislative function. The majority held that it was not for the courts to create subsets of the legislatively identified offence (145). The point of difference between the members of the Court turned upon the degree to which the starting point given by the court below could or should be taken as perspective. As Sopinka J, writing for the majority noted (146), even if it is said that a failure to characterise an offence as falling within a particular judicially created category of assault does not amount to error in principle justifying appellate review, using it as a 'tool to determine the proper range of sentence for a certain type of offence' (147) amounts to treating the failure as if it were an error of principle. That is, it gives prescriptive force to the subsets of offence which are identified in the guideline."

19. The point is that absent statutory requirements such as those enacted in the United States in Minnesota (Blakely v Washington [2004] USSC 2665; 542 U.S. 296 2004; see generally Blakely in Minnesota, Two Years Out, Professor Frase, University of Minnesota, Ohio, State Journal of Criminal Law 2006 Vol. 4 p73), guideline judgments cannot be prescriptive because of the varying and specific circumstances of subject to those caveats such judgments are useful in attempting consistency.
    
20. In Billam (supra), the Court identified eight aggravating factors as:
    
    • (1) Violence...over and above the force necessary to commit the rape;
      
    • (2) A weapon is used to frighten the victim;
      
    • (3) The rape is repeated;
      
    • (4) The rape has been carefully planned;
      
    • (5) The offender has previous convictions for rape or other serious offences of a violent or sexual kind;
      
    • (6) The victim is subject to further indignities or perversions;
      
    • (7) The victim is very old or very young; and
      
    • (8) The effect on the victim.
      
21. To these factors should be added rape of a spouse (R v S (supra) and the Crimes Ordinance 1961 s43 (3)) and pack rape.
    
22. Lord Lane CJ, who delivered the judgment in Billam (supra), analysed the English statistics for the year 1984 which showed that 95% of all defendants received immediate sentence; 28% received sentences of 2 years or less; 23% over two years and up to three years; 18% of over three and up to four years; 18% over four and up to five years and 8% over five years including 2% receiving life. Most of the suspended sentences involved defendants dealt with under the Children and Young Persons Act 1933. His Honour went on to state at 987 – 8:
    

"The variable factors in cases of rape are so numerous that it is difficult to lay down guidelines as to the proper length of sentence in terms of years. That aspect of the problem was not considered in R v Roberts. There are, however, many reported decisions of the court which give an indication of what current practice ought to be and it may be useful to summarise their general effects.

For rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as a starting point in a contested case. Where a rape is committed by two or more men acting together, or by a man who has broken into or otherwise gained access to a place where the victim is living, or by a person who is in a position of responsibility towards the victim, or by a person who abducts the victim and holds her captive, the starting point should be eight years.

At the top of the scale comes the defendant who has carried out what might be described as a campaign of rape, committing the crime on a number of different women or girls. He represents a more than ordinary danger and a sentence of 15 years or more may be appropriate. Where the defendant's behaviour has manifested perverted or psychopathic tendencies or gross personality disorder, and where he is likely, if at large, to remain a danger to women for an indefinite time, a life sentence will not be inappropriate."

The Court then proceeded to enumerate the aggravating matters referred to above.

23. The same Court, differently constituted, had reason to revisit the general sentencing principles stated in Billam (supra) in relation to children and relationship rape in 2003. In the first case (involving three separate cases), R v Millberry [2002] EWCA Crim 2891; [2003] 1 WLR 546, the Court took into account legislative changes made since Billam The Court noted a change in the severity of sentences, Lord Wolf CJ observing at 7:
    

"The advice records that the average sentence for an adult offender sentenced to immediate custody for rape in 2000 was seven years four months (seven years six months on a not guilty plea and six years ten months on a guilty plea). The majority of sentences (57%) fell within the range five – ten years, but 25% of offenders received sentences of under five years and 17% were sentenced to more than ten years (including 10% whose sentence was life imprisonment)."

24. The Court then considered the appropriate 'starting point' for varying forms of rape. They can be summarised as:
    
    • (1) Five years 'for a single offence on an adult victim by a single offender manifesting none of the features below that attract a higher starting point.'
      
    • (2) Eight years.
      
    • - 'when the rape is committed by two or more offenders acting together';
      
    • - Where there is a breach of trust through responsibility such as a teacher, medical practitioner or employment;
      
    • - Rape following abductions;
      
    • - Rape of a child or a person otherwise vulnerable;
      
    • - Repeated acts;
      
    • - Racial aggravation; and
      
    • - Rape by a person afflicted by a life threatening disease.
      

The reasoning was because of the impact on the victim and/or the degree of culpability.

(3) Fifteen years.

- for repeated acts of rape over a course of time or involving multiple victims.

(4) Life sentence.

- in special circumstances such as psychopathic tendencies especially where the offender 'is likely, if at large, to remain a danger to women for an indefinite time' or where there are specific statutory provisions for repeat offenders.

25. The Court then identified and discussed the import of mitigating factors, pleas of guilty and aggravating factors. But importantly the Court warned against the tendency to regard the guidelines as determining fixed and predictive sentence, an approach repeated by the High Court in Wong (supra), stating at 14:
    

"The role of guidelines

34 Before concluding our general guidance with regard to sentencing on rape and turning to the cases of the individual appellants, we would emphasise that guidelines such as we have set out above can produce sentences which are inappropriately high or inappropriately low if sentencers merely adopt a mechanistic approach to the guidelines. It is essential that, having taken the guidelines into account, sentencers stand back and look at the circumstances as a whole and impose the sentence which is appropriate having regard to all the circumstances. Double accounting must be avoided and can be a result of guidelines if they are applied indiscriminately. Guideline judgments are intended to assist the judge arrive at the correct sentence. They do not purport to identify the correct sentence. Doing so is the task of the trial judge."

26. A third English case (Attorney General's References No. 120, 91 and 119 [2003] 2 All E.R. 955) also dealt with three representatives cases. Each involved rapes or sexual impropriety committed by a relative or person close to the victim, many years before the matter was dealt with by a Criminal Court. The Court approved the general principles stated in Billam and Millberry (supra) but added that before passing a lighter sentence because the offences were 'stale' the Court should weigh the impact on the victim of the mattering having removed secret for so long.
    
27. The New Zealand Courts have followed the English position of attempting to fix a starting point. In R v A (supra), Lord Cooke observed at 131:
    

"On the argument of the present case counsel for the Crown informed us that the average New Zealand sentence for rape, disregarding preventive detention cases and without allowing deduction for pre-sentence custody, is now five years seven months. If the time spent in custody before sentence is taken into account, the average may well be more than six years. Thus the starting point stated in Clark for contested cases has apparently come to be lower than the average for all rape sentences, whether the plea had been guilty or not guilty. We think that a major reason is that, as any Judge with significant experience in the field will confirm, additional indignities and the force accompanying them have become a very marked feature of evidence relating to rape. Whether in the main this represents a change in the pattern of the conduct of offenders, or only in the willingness of victims to speak out in a franker world, is a question which we cannot answer. But a further contributing reason may have been a sense in the judiciary that the five-year starting point should now be seen as itself rather on the low side.

It is reasonable to assume that both the five-year starting point and the approximate sentence prevailing in practice could have been known to Parliament and its advisers when the maximum sentence was increased to 20 years. On a purely arithmetical basis, looking only at Clark, counsel for the appellant is no doubt right in saying that the new starting point would be seven years, one month and three weeks, on which footing Mr Glover would also be justified in his submission that, sentencing not being a purely mathematical exercise, the practical starting point should be seven years. We consider, however, that this suggestion would not allow adequately for the spirit of the recent legislative changes or the previously existing general level of rape sentencing in fact.

In his reference to an eight-year starting point, the Judge did not expressly distinguish between guilty and not guilty pleas. His observations about eight years were addressed to this particular case. We think, however, that in the light of the judicial experience since R v Clark and the knowledge of what has transpired that is to be attributed to Parliament it should now be said that eight years is the starting point in a contested rape case."

But the learned President added as a stricture:

"While eight years should be the starting point, it is not necessarily the norm.

...there may be features in a particular case justifying going below, possibly even well below, the eight-year starting point. Some such cases are listed in Billam and Clark.

...

The present judgment therefore signals an increase in the starting point for rape sentencing, and so probably in the average length of rape sentences, but it is not intended to fetter sentencing Judges in assessing the gravity of particular cases. In the end, almost everything turns on the facts of the particular case. It is part of the judicial responsibility to weight these. Generalisations are not likely to be of much assistance. Nor of course are expressions of opinion by media or members of the public not fully apprised of all the facts of particular cases and relying only on very brief summaries. In general a more severe sentencing approach for sexual violation other than rape is also called for by the new legislation; but the facts of such cases vary so greatly that it is not easy to provide guidelines, and in any event that should not be attempted in the present case."

28. Australian Courts have been reluctant to adopt a 'starting point' methodology. They have preferred the 'intuitive synthesis approach' rather than adopting the 'two tiered model' (Pavlic v R (1995) Tas. R 186 and Wong (supra)). As McHugh J. stated in AB v R [1999] HCA 46; (1999) 198 CLR 111 at paragraphs 15 – 17:
    

"The two-tiered approach of determining an objective sentence and then adjusting it is in conflict with the discretionary nature of the sentencing process. Discretionary judgments require the weighing of elements, not the formulation of adjustable rules or benchmarks. The two-tiered approach is also in conflict with the statements of principle in Veen v The Queen [No. 2]...

...

To adopt a two-tiered approach to sentencing by beginning with an objectively determined sentence which is then arithmetically adjusted to take into account of various factors is also a process which is planning unsuited to the sentencing process in many cases. No doubt, where the circumstances of the offence are such that a heavy jail sentence is clearly required, the judge may make a notional or provisional assessment of the appropriate sentence and adjust it accordingly. But even in these cases – where punishment, deterrence and protection dominate the process – such an approach almost always invites error. Statutory exceptions aside, the task of the judge 'is to pass such sentence as in all the circumstances relating to the offence and to the offender is that which he regards as the appropriate sentence' (30). If the judge first formulates an objectively determined sentence, he or she has only relied on part of the relevant circumstances and has effectively allowed that part of the circumstances to dominate the sentencing process. Worse still, there is a danger that the objectively determined sentence will be formulated by reference to abstractions derived from the circumstances, rather than by reference to the concrete facts of the case.

...

Moreover, in most cases, the two-tiered approach is not only unsuitable but one that cannot realistically be followed in practice. I doubt, for example, whether many judges or magistrates who defer sentence first work out an objectively determined sentence and then 'adjust' or 'discount' that sentence by deferring passing sentence. Nor do I think it likely that the judge or magistrate who suspends a sentence first fixes an objective sentence, discounts it for the circumstances of the convicted person, then 'discounts' it again by suspending the sentence. Rather the judges or magistrates instinctively synthesise the various elements of the case into a conclusion that the case is one calling for a deferred or suspended sentence."

29. The New Zealand Court of Appeal in R v AM [2010] NZCA 114, has recently considered the different approaches taken in Australia and the most recent case of Makarian v The Queen (2005) 228 CLR 357. The Court said:
    

"[15] Heavily structured approaches to sentencing of this nature are not universally popular (cf the "instinctive synthesis" approach favoured by the High Court of Australia, see Makarian v The Queen [2005] HCA 25, 228 CLR 357). But structured sentencing has advantages in terms of consistency and transparency and is now well embedded in New Zealand. Indeed we are of the view that sentencing based on instinctive synthesis would not be in conformity with the Sentencing Act, in particular s8(e) (consistency) and s31 (the duty to give reasons)."

30. Detailed consideration will be given to the terms and import of AM (supra) in the concurrent decision of Amosa Sione. Its principles and approach will be applied here.
    
31. In her text Sentencing in Tasmania 2 Ed., Professor Warner undertook an analysis of the sentencing range for the crimes of rape within that jurisdiction during the period 1978 – 2000. In that jurisdiction the Courts had rejected the concept of a tariff for rape. In R v S (supra), the sentencing Judge stated:
    

"I do not believe there is a tariff accepted by the Courts in Tasmania applicable to the crime of rape. There is a range of penalties dependent upon the particular circumstances of the nature and form of criminal conduct, the effect on the victim and the subjective characteristics of the offender."

32. The statistics analysed by Professor Warner for single acts of rape show:
    

Global Custodial Sentences are shown as:

33. Discrepancies can be explained by legislature amendments extending the statutory definition of rape to include oral penetration, continuation of sexual intercourse initially consented to and acts which could previously be described as unlawful carnal knowledge.
    
34. The point of the above exercise is to show that there has been an increase in the penalties imposed for the crime of the rape resulting in greater parity with the changes which have occurred in other jurisdictions especially New Zealand and the United Kingdom.
    
35. The New Zealand Courts decided to apply the English model as set out in the 'Guideline Judgments' previously discussed using a 'starting point' as the appropriate method in arriving at a transparent sentence. In Attorney General v Matalavea [2007] WSCA 8, the Samoan Court of Appeal referred to the New Zealand change at par. 19 stating:
    

"Until recently in Samoa, as in New Zealand, the courts had tended to fix the final sentence after discussion of aggravating and mitigating factors but without specific discussion to what starting point would have been adopted without those factors."

36. The change in the approach to sentencing in New Zealand can be said to have commenced in the cases of R v Naime and Aloniu (C.A. 428/04 and 429/04, respectively) and applied in R v Hereora [1986] 2 NZLR 164 and R v Mako [2000] NZCA 407; [2000] 2 NZLR 170. This Court notes that the earlier decisions were intended as 'guideline' judgments.
    
37. A full bench of the New Zealand Court of Appeal (Anderson P, Glazebrook, Hammond, William Young and O'Regan JJ.) was convened in R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372. That Court considered some overseas material but confirmed the approach taken in Mako (supra) in which that Court had said:
    

"The actual sentencing levels adopted in Australia, the United Kingdom and Canada must be looked at in light of the different maximum sentences and the different systems of administration of custodial sentences. We have not attempted to draw any conclusions in respect of sentences actually served in each jurisdiction. We do not have the necessary information to enable us to so, nor do we see it as the role in this court."

38. The approach taken in Taueki (supra) was followed by the learned Chief Justice in this jurisdiction in Police v. Faulkner [2007] WSSC 80, who applied a starting point in terms used in R v Davis [2005] NZCA 246, namely:
    

"In setting a starting point for sentence in this case, I have decided to apply the approach adopted in R v Davis [2005] NZCA 246, which was a case of possession of cocaine and conspiring to export cocaine, where Robertson J. in delivering the judgment of the New Zealand Court of Appeal comprising of himself, Baragwanath and Heath JJ. stated at para [63]:

'It is dangerous, in cases generally and particularly in an area like this, to try to use mathematical analysis to determine a sentence. There has to be a judgment by weighing all the relevant factors. In setting the starting point the fundamental focus is on the actual offence and the involvement of the particular person in that offending. We use the term 'starting point' in the way it was defined by this Court in R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 at [8]:

'The modern approach to sentencing uses as a reference point a starting point taking into account aggravating and mitigating features of offending, but excluding mitigating and aggravating features relating to the offender. Put another way, a starting point 'is the sentence considered appropriate for the particular offending (the combination of features) for an adult offender after a defended trial' (R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 at para. [34]'."

39. The recent decision of the New Zealand Court of Appeal in R v AM (supra) is detailed, helpful to the Courts and well reasoned. Consistent with the above analysis it forms part of the jurisprudence of Samoa.
    
40. Taueki (supra) was approved and applied by the Court of Appeal in Matalavea (supra) and in Leo v Attorney General [2011] WSCA 3, when their Honours said at 7:
    

"In faithful compliance with R v Taueki [2005] NZLR 372, which has been accepted in Samoa..."

41. This Court is bound by the decision of the Samoan Court of Appeal and will apply its methodology.
    

CAVEAT

42. There remains one outstanding question namely, whether the Samoan Courts, in applying AM (supra), will also apply the quantum of sentence or sentencing ranges stated in AM. That decision ought not be made by a single Judge and can only be properly determined by either the Court of Appeal or a traditional process of the synthesis of a number of judgments by single Judges over a period of time. Those are the historic methods used by the Common Law. This judgment ought not be seen as usurping either those methods or judicial models, but remain for the Court as a whole. The Samoan jurisdiction might choose to use different ranges or 'bands' in the application of the general principles stated in AM. Here I have chosen a commencing point of twelve years. Over time it may be that the commencing point or bands will alter to reflect other matters but this Court of a single Judge ought not presume to set those commencing points or limitations.
    
43. Central to the principles of sentencing are those of general consistency and specific matters of parity or disparity as between offenders. General consistency is the responsibility of the Court as a whole both at first instances and through appellate review. As Mason J. said in Lowe [1984] HCA 46; (1984) 154 CLR 606 at 610:
    

"Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community."

CIRCUMSTANCES OF THE CASE

44. Faafouina Filipo has been convicted by Assessors of three charges of Rape committed on a young girl aged 15 contrary to the Crimes Ordinance 1961 section 47. The crimes were committed between 10 and 21 August 2010. The girl was a member of the offender's extended family.
    
45. The acts of rape were committed by physical force and were accompanied by other acts of indecency. She had been raped either on her own property (the tsunami house) or enticed into the offender's home by lies or subterfuge. Following each rape she was threatened with death or physical harm if she revealed his misconduct. He has shown no remorse for his conduct and is not entitled to any mitigation through plea or not putting the girl through the ordeal of giving evidence of the events. Rather he suggested at trial that another had caused her pregnancy.
    
46. The victim has suffered both physically as a result of the rapes. She has become distant from her friends and developed a feeling of loneliness whereas she had previously been a vibrant child. She has found her pregnancy difficult without the support of her family members. It will be difficult for her to raise a child without financial resources. These events have caused discord within her family and she does not wish to return to her village.
    
47. The offender was aged 38 at the time of the commission of those crimes. A pre-sentence report dated 8 September, Filipo was the youngest of a large family and was educated until Year 12. He resided in New Zealand from 1996 until 2004. He is unmarried although he fathered 2 children while in New Zealand. He was living in a relationship at the time of these events and had 2 children through that relationship. He has been a good provider for his family and proved to be a good worker. He has been banished from his village but has continued to provide financial support for his family. He has no previous convictions. On his return to Samoa he worked as a planter.
    
48. The above matters are accepted as mitigating matters.
    
49. His family has offered an apology to the girl's family, but not the defendant, who has continued to deny his conduct.
    
50. The crimes were a breach of trust without regard to the physical safety of the girl. Their consequences have been serious.
    
51. He has served no time in custody.
    

APPLICATION OF PRINCIPLE

52. The preceding analysis of 'guideline judgments', commencing or starting point or the adoption of a fixed quantitative term was not intended as an academic discourse but rather to illustrate the problems caused by the prosecution's submissions and their potential effect on the requirement of consistency of sentencing.
    
53. The prosecution submits that the appropriate actual or end sentence be imprisonment for twenty years. In doing so it relies on cases such as:
    

54. A difficulty is in the choosing a 'starting point.' If it represents the aggravating matters then the choice becomes problematic, since the result represents the objective features of the crime itself (age disparity, vulnerability, relationship and the like) which departs from other matters such as those identified in the English and New Zealand cases previously discussed. But over time it can lead to a uniform starting point with little room for the particular circumstances, aggravating and mitigating alike. There is a tendency for it to become the normative sentence.
    
55. The Court is conscious that:
    
    • (1) penalties for the crime of rape, abuse of children and violence against women have increased in most countries in the common law world;
      
    • (2) that increase has been warranted either because of prevalence and greater concern for the plight of the victim which, historically, was given less weight;
      
    • (3) the end or actual sentence may be equivalent irrespective of whether the intuitive synthesis or the two stage (Taueki, supra) process;
      
    • (4) Samoa has historically provided a greater maximum penalty (non mandatory life imprisonment) so the discretion of a Court has been afforded greater scope in imposing more severe punishment (see: Police v. Z, unreported 13 July 2005; a decision by the learned Chief Justice);
      
    • (5) Prosecutors ought take more care in the selection of the 'commencing point') and more regard to the strictures stated in Billam (supra), A (supra) and AM (supra);
      
    • (6) Consistency is a required legal principle and departure justified by identified aggravating matters; and
      
    • (7) Other cases show that twenty years is not an automatic starting point. In some cases it is used as a reflection of the nature of the case and its aggravating factors and only employed where it needs to only consider subjective mitigating matters.
      
56. The Court will deal with the question and problems of consistency in a concurrent judgment of Amosa Sione.
    
57. There remains an additional factor relevant to the question of determining the actual sentence.
    

PAROLE

58. Consideration of the likely release date on parole should not be taken into account when determining the length of a prison sentence (George v R [1986] Tas. R 49) and it is improper to take possible early release on parole or the release policies of the Parole Board into account when determining the length of sentence (R v Paivinen [1985] HCA 39; (1985) 158 CLR 489. But it is necessary for the Courts to take into account the requirements of a Parliament or House of Assembly as expressed through legislation. Some jurisdictions require sentencing Judge to impose a minimum non parole period to reflect the nature and circumstances of the criminal conduct.
    
59. Samoa has enacted the Prisons Parole Board Act 1977 ("The Act"). The Act section 10 relevantly provides:
    

"Eligibility for parole consideration – (1) Every offender shall be eligible for consideration by the Board for release on parole upon the expiry of the following periods from the date of his or her reception in a prison after sentencing:

(a) 10 years in the case of every offender undergoing imprisonment for life, having been sentenced to death and the sentence having been commuted to life imprisonment;

(b) 8 years in the case of every offender undergoing imprisonment for life.

(c) 1 year or after the expiry of one-half of the term of the sentence, whatever period is longer, in the case of every offender undergoing a sentence of one year or more other than a sentence of life imprisonment."

60. In the event that twenty years is used in a rape case as a starting point and there are aggravating matters but none in mitigation, the end result could be twenty-five years imprisonment. There are, of course, cases where an actual sentence for rape ought be twenty-five years. But they are exceptional. But if twenty years is the normative period to which aggravating matters are added the result is that a person sentenced to life imprisonment is entitled to seek parole at a time less than that for a person convicted of rape. A probation officer who assisted the Court during this sentencing hearing suggested that in such a case the Court could use the provision of the Act section 7(2)(c) which permits the Parole Board to take into account 'any comments by the Court when such sentence was imposed.'
    
61. That option is problematic since the sentencing Judge would not be able to sufficiently assess or anticipate reform or conduct during imprisonment.
    
62. In Thompson (supra), Lord Cooke referred to this issue in his judgment at 587, when he added:
    

"The fact that the Court of Appeal or the sentencing Judge had drawn sufficient attention to the power would nevertheless underline that it hesitates before granting parole is available in a sufficiently clear case."

63. But those observations, accepted by the Court, do not assist in the resolution of the complication raised by the Act section 10. They might assist the Parole Board in deferring parole in a specific case but ought not be used in the setting of a head or primary sentence.
    

ASSESSMENT OF SENTENCE

64. The offender, a much older man, raped a young girl on three occasions, over a relatively short period of time. No violence more than was necessary to achieve the purpose was used. The commencing point ought be that of 12 years imprisonment, namely the bottom level of Band 3 before the addition of aggravating matters.
    
65. Aggravating matters include:
    
    • - the offender used threats of death and injury to the girl after the event;
      
    • - he was in a position of trust as a member of the girl's extended family;
      
    • - two of the three rapes were planned in that subterfuge was used to entice her into a place where she was raped;
      
    • - the girl became pregnant;
      
    • - the girl has suffered severe physical and emotional trauma;
      
    • - The offender, during the conduct of the case suggested that the pregnancy was caused by another; and
      
    • - Age disparity.
      
66. The only mitigating factors are that he is a first offender and has been banished from his village. He has shown no remorse and put the girl through the ordeal of trial. He has spent no time in custody. He has received a favourable pre-sentence report.
    
67. The appropriate sentence is that of eighteen (18) years imprisonment.
    

ORDERS

(1) Faafouina Filipo be convicted of the crimes of Rape.

(2) Faafounina Filipo be sentenced to a term of imprisonment for a period of eighteen (18) years, such sentence to commence as and from 16 August 2011.

(3) The names of the victim, her family and village are suppressed.

(JUSTICE SLICER)