[the names of the complainant, her family and her village are suppressed]

supreme court of samoa
Police v Samoa [2012] WSSC 123

Case name: Police v Aramoa Suiga Samoa
Citation: [2012] WSSC 123
Decision date: 26 October 2012  
Parties: police (prosecution) and aramoa suiga samoa male of Moataa and Malie
Hearing date(s): 3 October 2012 and 19 October 2012
File number(s): 
Jurisdiction: CRIMINAL
Place of delivery: MULINUU
Judge(s): justice slicer
On appeal from:
Order:
Representation: 
R Titi for the prosecution
S Wulf for the defendant
Catchwords: 
Words and phrases:
Legislation cited:
Crimes Ordinance 1961 ss.47, 50
Cases cited:
Police v PM [2011] WSSC 112
Police v Tapuai Lavilavi (11 June 2012)
Police v Malufuifatu Sootuli (2 July 2012)
Police v Lole [2012] WSSC 27
R v Hunter (1984) 36 SASR 101
Cobiac v Liddy (1962) 111 CLR 257
R v De Simoni (1981) 147 CLR 383
Police v Filipo [2011] WSSC 127
R v AM [2010] NZCA 114
R v Lowe (1984) 154 CLR 606
Police v Amosa Sione (1 November 2011)
Summary of decision:

in the supreme court of samoa
held at mulinuu
between
police
Prosecution
and
aramoa suiga samoa male of Moataa and Malie
Defendant

Counsel:	R Titi for the prosecution
S Wulf for the defendant
Hearing:	3 October 2012 and 19 October 2012
Sentence:	26 October 2012
Charges:	Rape and Sex With Related Girl

sentence OF slicer J
1.	The defendant has pleaded guilty to two charges of the crime of rape and one of unlawful sexual intercourse with a girl under the age of 21 who was a member of his household, contrary to the Crimes Ordinance 1961, sections 47, 50.
2.	The offender was aged 33 and married to the victim’s mother.  The girl was aged 15.
3.	Between 1 and 31 March 2011, the girl, who had been sleeping in her mother’s bed, was raped soon after her mother left to go to work.  He forced himself on her and told her not to scream or call out, and that if she told anyone he would never do anything again that she wanted.  He undressed the girl who was scared, performed oral sex on her and then penetrated her vagina with his penis.  The girl was crying and in no way consented to his conduct.  The same thing occurred on a different occasion in the same month.
4.	In May 2011, he again had sex with her while her mother had gone out to a social event.  It may be that the lesser charge was accepted as the girl had accepted her fate and did nothing to reject his advances.
5.	The girl was made pregnant by the defendant.  On 6 March 2012, the school principal, quite properly, reported the matters to police following the return of the girl to school after she gave birth to her baby.  On the same day, the defendant was apprehended and admitted responsibility.
6.	However, he entered pleas of not guilty and only changed his plea on 3 October 2012.  He is entitled to the benefit of that plea in that he did not put the victim through the ordeal of trial and reliving the events.  He is not entitled to the benefit of an early plea and his delay, doubtless, caused the girl distress during the intervening period.
7.	The girl suffered physical pain through the rape and her pregnancy.  In addition, she has suffered psychological harm.  The victim impact statement provided details of her experience as including:
“i.	That when these incidents happened, she was never happy because she always knew that if the sexual intercourses continued, she would eventually get pregnant, which was something she didn’t want at this stage of her life;
ii.	She also says that during the period when these incidents were happening, she felt confined within her own home and felt that her life was restricted.  During those times, she could not freely associate with her friends in the village and school and even at their taekwando trainings, because every time the Defendant saw her talking to a boy, he would get jealous;
iii.	She states that the only times she felt free was when she was in school, but at the end of school and at home, she was always conscious of what she did and who she talked to because the Defendant would query her later;
iv.	She states that before the sexual intercourses happened, the Defendant did use to scold her when talking to boys, but only in a fatherly manner, and only to the extent of telling her to come home and not to hang with the boys.  However, after these incidents have occurred, the manner of his scolding changed, and that when he does scold her, he would also verbally abuse her by saying that she wanted to marry the boys (fia faitoalua) and she saw that he was acting in a jealous manner;
v.	The even when she talked with her girlfriends, he would later on query as to what they had talked about, and when she didn’t tell him he would get angry with her and he would then report her to her mother, adding on other things, and her mother would then scold her;
vi.	That she has been ridiculed by other children especially with other girls in her church, because of what has happened to her and because she has given birth to a baby.  She also feels that the other children underestimate her because of her situation, and when the other children say things about her having given birth, she feels sad because she could not reply back as she doesn’t want to argue with the other children about her situation.” 
8.	The crime has also caused trouble and arguments with her immediate and extended family.  Her mother deserted her because she pursued her case.  In doing so, the mother has shamed both herself and her family.  The mother has betrayed her daughter and continues to live with the molester of her daughter.
Pre Sentence Report
9.	The defendant enjoyed a good upbringing by his family.  He completed Year 13 and attended a 6 months leadership training course in Australia.  On his return he worked for 3 years with a building company and for 2 years, in 2011, was employed as a coach and sportsperson.  He represented his country in international competitions and in 2003 commenced employment as a technician with a business firm.
10.	He has four children by the victim’s mother.
11.	Others in the community speak highly of him including members of the Legislative Assembly, a church leader and members of the community who describe his conduct as ‘out of character’.
12.	In one respect, his character and achievements are to his advantage.  But there is also a contradiction.  One who has had so many gifts and advantages in life through family upbringing and achievements is more culpable in taking advantage of his position and raping a young girl, leaving her pregnant.  Added to that is the fact that he has done nothing or little to help her in the time of her greatest need.  Both of those competing matters will be taken into account in the assessment of sentence.
Prosecution Submission
13.	The prosecution suggests a commencing point of 20 years with allowance made for mitigating matters of 5 years resulting in an actual sentence of 15 years.  It relies on cases such as PM [2011] WSSC 112 (a case involving 5 counts of rape on the defendant’s biological daughter aged 14 years) which resulted in an actual sentence of 20 years; Tapuai Lavilavi (11 June 2012), the rape of a 15 year old by a stepfather, a commencing point of 20 years reduced to 15; Malufuifatu Sootuli (2 July 2012), victim, a stepdaughter aged 11 who suffered four rapes and four indecent assaults, again a 20 year starting point reduced by 5 and Felise (10 acts of rape and 5 of indecent assault).
14.	Here the Court is required to sentence on the basis of two acts of rape and one of unlawful sexual intercourse.  It differs from Lole [2012] WSSC 27, in that case the girl was already pregnant and the Court took into account an additional matter, namely the advanced age of the offender (see: Hunter (1984) 36 SASR 101, Cobiac v Liddy 1962 111 CLR 257) and here the Court is required to take into account the fact that the stepfather impregnated the girl.
15.	There remains a further principle which governs the fixing of a commencing point.  Whatever the suspicion of the Court that the misconduct was more prolonged, it is required to punish only for the crime charged and committed (De Simoni (1981) 147 CLR 383).  It is required to punish for two acts of rape and one of unlawful sexual intercourse.
16.	For those reasons I do not accept a commencing point of 20 years.  Taking the above into account, the Court fixes the commencing point of 18 years.
17.	The Court has consistently applied the ‘band approach’ taken by the New Zealand courts but it does not follow that Samoa should seek to impose sentences based on the range applied in New Zealand, a matter which will be later considered.
Mitigation
18.	The defendant, through counsel, advanced as mitigating matters:
(1)	He was a first offender.
(2)	He is entitled to the benefit of an early plea thus avoiding the stress on the complainant and the saving of court time.  The crimes were committed in March 2012 and the defendant did not indicate a change of plea until 27 September, some six days before trial.  I would not categorize that as an early plea and the delay did not relieve the complainant of the intervening stress.  He is entitled to the benefit of a plea and the avoidance of requiring the victim to give evidence.  His eventual plea may also be regarded as acceptance of the inevitable rather than remorse and concern for the victim.  Allowance is made but not as great as an early plea.
(3)	He provides for his family and village.  That is accepted but the Court notes that he had provided no assistance to the victim or his child.  It is given little weight.
(4)	He apologised to the victim.  That may be so but given (3), has little import.  He continues to live with the girl’s mother who has rejected her daughter.  There is no evidence that he attempted to dissuade the mother from her conduct or sought to ameliorate the impact on the girl or his biological daughter. 
19.	Allowance of 2 years will be made.  The actual term of imprisonment will be one of 16 years.  He is entitled to time served which will be rounded off to one month. 
20.	In Filipo [2011] WSSC 127 and the concurrent case of Amosa Sione, the Court expressed a caveat against simply following the quantum of sentences as stated by the New Zealand Court of Appeal in R v AM [2010] NZCA 114, within the ‘band method’.  In Filipo, the Court stated:
“42. 	…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) 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.’”
21.	In Amosa Sione (1 November 2011), I repeated the caveat to the outcome of the New Zealand method and set out the need for Samoa to set its own range of ‘band sentences’ rather than adopt the New Zealand range.  In that case the Court stated:
“25.  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 remains 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 eighteen 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.
26.  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 instance and through appellate review.”
22.	These observations are repeated here because although the Court has made some progress on consistency, matters such as this take time to work through and the infinite number of circumstances, both objective and subjective (to the offender) make the ideal consistency difficult to achieve.
ORDERS:
(1)	Aramoa Suiga Samoa is convicted of the crimes of rape and unlawful sexual intercourse, comprised in Informations S242, 1251 and 1594 of 2012.
(2)	The remaining Informations have been withdrawn and are dismissed.
(3)	Aramoa Suiga Samoa is sentenced to a term of imprisonment for a period of 15 years and 11 months; such sentence to commence as and from 19 October 2012.
(4)	The names of the complainant, her family (but not the defendant) and the village are suppressed.

…………………………
    (JUSTICE SLICER)