SUPREME COURT OF SAMOA
Police v Kirisome[2012] WSSC 41

Case name: Police v Kirisome

Citation: [2012] WSSC 41

Decision date: 20 February 2012 

Parties: Police and Fetu Dennis Kirisome

Hearing date(s): 18 and 19 October 2011

File number(s): 

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s):Justice Vaai 

On appeal from:

Order:

Representation: 
Rexona Titi for prosecution 
Raymond Schuster for defendant

Catchwords: 

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

File No.

BETWEEN:

POLICE
Prosecution

AND:
FETU DENNIS KIRISOME male of Lufilufi and Iva Savaii
Defendant 

Counsel:	Rexona Titi for prosecution
		Raymond Schuster for defendant

Sentence:	20 February 2012

S  E  N  T  E  N  C  E 

1.	The defendant has been convicted by a panel of assessors on charges of rape, indecent assault and assault.  All the three offences were committed on the night of the 1st April 2011 at Lufilufi village where both the defendant and the victim were residing.
2.	The assault and indecent assault preceded the rape, in fact the assault and indecent assault could be classified as part and parcel of the acts committed while the defendant was committing rape.
3.	The defendant was aged 30 years at the time and the victim was 17.  They knew each other very well.  They met up on the night of the 1st April 2011 when the victim went to the shop at the main road.  The defendant was drinking alcohol by the side of the road.
4.	They both left the main road and walked along an access road towards their homes.  As they were about to walk past a deserted house a few meters from the access road and the residence of the Methodist church the victim alleged that she was taken forcibly taken to the deserted house by threat of violence.  She was raped at the deserted house.
5.	The two of them were discovered at the deserted house by the father and brother of the victim.  Upon hearing her father and brother approaching the vicinity of the house she got up and ran outside.  Her mother also came.  They went home.
6.	The defendant soon followed them, he stood outside the victim’s family home and called to the victim to return his bag and money.
7.	The defence ran at the trial was that there was indeed sexual intercourse in which the victim willingly participated.  She cried foul when she saw and heard her father approaching the deserted house.
8.	In returning a guilty verdict the assessors obviously rejected the evidence given by the defence; neither did the defence evidence create a reasonable doubt in the minds of the assessors.
Pre-sentence Report
9.	The defendant is described in the probation report as the second eldest of the eight children.  Due to financial hardship he left school at year 11 and acquired plantation and fishing skills to assist the family.  He is single.
Discussion
10.	The prosecution seeks an imprisonment sentence of 10 years which in my respective view calls for a starting point of about 15 years.
11.	No significant physical bodily injury was found on the victim’s body by the examining doctor.  Despite allegations by the victim that she was punched several times on the thighs the doctor was adamant under cross examination that she would have seen the injuries and noted them on her report if they did exist.  It is a clear indication that the victim did exaggerate her testimony to convey an impression that she was subjected to aggressive physical violence prior to the rape.
12.	For the purpose of sentence the court takes the view that the force involved was no more than the force normally associated with the commission of rape which consisted of a love bite and bruises on her neck and back.
13.	Penalties for the crime of rape, violence against women and abuse of children have increased in most countries including Samoa due mainly to the prevalence of the offending and the need to protect women and young children.
14.	A non mandatory maximum penalty of life imprisonment for rape gives substantive scope to the court in the exercise of its discretion to impose severe punishment as the circumstances surrounding the offending dictates.
15.	Consistency in sentencing is also a major contributing factor as unjustified departure can erode public confidence in the sentencing process.
16.	It is true that as a result of the defendant’s not guilty plea the victim went through the ordeal of a trial.  But the court accepts that the assessors’ verdict could have gone in favour of the defendant, a factor which the court took into account when it granted leave to the defence to move to veto the assessors verdict.
17.	The aggravating features of the offending are the age differences of the defendant and the victim.  There is also an element of the breach of trust as the defendant was a close friend of the victim’s older brother and she was quite entitled to believe that the defendant would accompany her to her home safely.
18.	Taking into account the aggravating factors of the offending I consider 9 years as the appropriate starting point.  For his previous good record and first offender status I deduct 3 years and 6 months.  
19.	He is sentenced to 5 years and 6 months imprisonment less any time he has spent in custody.
20.	For the assault and indecent assault he is convicted and discharged.

JUSTICE VAAI