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Police v Ailepata [2011] WSSC 60 (14 March 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

TEEVALE APULU AILEPATA
male of Faleasiu-uta and Vaimoso.
Defendant

Counsels: Ms R Titi and Ms F E Niumata for prosecution
Defendant unrepresented

Sentence: 14 March 2011

SENTENCE

I would remind ladies and gentlemen of the press there are suppression orders in respect of the publication of the complainants name, village and any other details that may identify her.

The summary of facts from the police in this matter which the defendant has admitted relates as follows: the defendant is a 59 year old male from Faleasiu and Vaimoso-uta unemployed, separated from his wife with whom he had two children. The complainant in this matter was at the time of the offending 9 years old and was attending Faleasiu Primary School. The defendant is related to the complainant in that he is an older member of the complainants paternal family.

In about May 2009 the defendant moved in and lived with the complainant and her family. One morning during that month the complainant and her younger sister were at home with the defendant as their mother had left for work and the father had gone to Apia. While the complainant and her younger sister were sleeping the defendant entered their bedroom, woke the complainant up and tried to get her to have sex with him. She refused and this caused the complainants younger sister to wake up resulting in the defendant leaving the room. Later that day the two girls awoke and dressed and were getting ready to leave for an aunts house nearby. At that point the complainant was instructed by the defendant to stay while her sister went alone.

When they were alone the defendant told the complainant to go to the bedroom but she refused. The defendant responded by pulling her forcefully into the room and locking the door. He took off her clothes and pinned her to the mattress. He lay on top of her and used his finger to digitally penetrate the complainants vagina. These actions were interrupted according to the summary of facts by the barking of dogs and as the defendant looked out he saw the complainants sister coming back to the house. The defendant immediately ordered the complainant to put on her clothes and leave the room while he hid. Subsequently he grabbed a broom stick and started beating the two girls and threatening them with further assaults if they told their parents what had happened.

The summary goes on that a few days after this incident the two girls were again at home alone with the defendant. The complainant who had been weeding was pulled forcefully by the defendant into a room presumably the bedroom. Where he subsequently began fondling her vagina and again digitally penetrated her sexual part. He spread her legs wide open and this time was able to insert his penis into her vagina and he had sexual intercourse with her. During this time the complainant was struggling to free herself and states in her victim impact report that was because she felt severe pain in her vagina at what was being done to her. Hardly surprising since she was 9 years of age and the defendant some 50 odd years her senior.

This is not the only act of intercourse that took place between the parties. The summary relates that the same sort of thing happened to the complainant without her consent in July 2009, August 2009, September 2009, October 2009 and November 2009. The summary also refers to an incident of digital fondling in February 2011. As a result of all these the defendant has been charged with and pleaded guilty to six counts of rape covering the six months between May and November 2009 and one count of indecent assault covering the incident in February 2011. It is not clear how but these incidents were subsequently reported to the police which leads to todays proceedings. I must say it is not often I get to hear such horrible facts but I am getting to hear it far too many times these days.

This is a case of a 59 year old relative raping a 9 year old girl at least once a month for six months during 2009. It is a gross abuse of trust as the defendant was then living with the much younger complainant. It was committed in the home of the complainant, a place where all young girls are entitled to feel safe and protected and not subject to violation in this sort of manner. The defendant by his actions deprived this young girl of her innocence and those childhood things that she is entitled to not only by the law of this country by the laws of many countries. I have no doubt this conduct has affected this 9 year old girl and probably will continue to haunt her for the rest of her life.

The offence of rape is an offence of power and control. This defendant used his power as an older mature male over a young girl of his family who was at the time of these offences alone and under his protection and care. He used her as his sex slave to satisfy his personal lust. This is abhorrent behaviour on a 9 year old girl. The penalty must reflect societys condemnation of such actions and must also serve as a deterrent to other like minded matured men who prey on young girls for their perverse satisfaction.

The maximum penalty for rape according to the law of this country is life in prison. The highest start point that has ever been applied in rape cases coming before this court has been a start point of 20 years in prison. I adopt the totality approach of the learned Chief Justice in Police v P [2009] WSSC 16 which was also a case of multiple rape of a 15 year old girl over a period of time. But given the young age of the girl in this case and the other aggravating circumstances of the matter I upgrade that start point as I consider 25 years a better reflection of the criminality of your offending. But you are entitled to certain deductions by law which I will now make.

Normally a one-third deduction is granted in respect of a defendants guilty plea because that is an expression of his remorse and because the guilty plea usually avoids the necessity for a complainant to go to trial and relive such unpleasant memories. But in this case this defendant expressed no remorse to either the probation office or to the court this morning when he was given an opportunity to address the court. Most offenders given such opportunity apologise even if they do not mean it. This defendant did not even do that. I therefore will only give him limited credit for his guilty plea, I will only allow a period of 4 years for that. For the fact that you are a first offender Teevale at a mature age I deduct the period of 1 year. That means a total deduction of 5 years from the initial start point of 25 years.

You are entitled to no other deductions. In respect of each charge you will be convicted and sentenced to 20 years in prison but all terms are to be concurrent. That is in respect of the rape charges. In respect of the indecent assault charge you are convicted and sentenced to 2 years imprisonment that term will also be served concurrent to your terms for the rape.

............................
JUSTICE NELSON