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Police v Mativa [2014] WSSC 136 (16 May 2014)

IN THE SUPREME COURT OF SAMOA
Police v Mativa [2014] WSSC 136

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

JUNIOR also known as JANU MASOE MATIVA, male of Satapuala.
Defendant

Counsel: L Su’a-Mailo for prosecution
Defendant unrepresented

Sentence: 16 May 2014

SENTENCE

4. The defendant appears for sentence on three charges: one count of unlawful sexual connection with a female, one count of assault with intent to commit sexual violation on a female and one count of causing injury with intent. The summary of facts from the police which the defendant has admitted states he is a 27 year old male of Nofoalii, Ma’agao and Moata’a single and works as a carpenter. The complainant is a 67 year old widow with children and is retired.
5. On the 8^th of March at around 10:00 pm the complainant was socialising with some friends at the Marina at Matautu. At about mid-night she went outside to get some fresh air. She walked along the seawall and just before the Vaisigano Bridge the defendant jumped out from behind a pile of sand and struck her on the side of the face. The complainant lost consciousness and fell down. The defendant pulled her behind the pile of sand and undressed her. He also grabbed her bag and searched it. As he was doing this the complainant tried to stand up and ran away. When the defendant saw this he tackled her and again pulled her behind the pile of sand. The defendant unzipped his trouser and pulled out his private part and performed oral sex on the complainant. The complainant at that time was semi-conscious.
6. Two men who were walking along the road saw what was happening and came to the aid of the complainant. They intervened and pulled the defendant off the complainant and took her to the police station. They also took the defendant. The complainant was taken later that night by the police to the hospital where according to her medical report the following was noted: Upon arrival the complainant was upset but conscious. She had a bruise on her forehead and she was bleeding from her nose. She was kept overnight for observation and discharged the following day. As a result of this incident the defendant has been charged and has pleaded guilty to the charges against him. In case there has not been issued there will issue a suppression order prohibiting publication of the details of the complainant.
7. This obviously was a serious sexual assault by the defendant on the complainant. The victim impact report filed by the prosecution indicates that the incident has had a lasting impression on the complainant. It also notes that the right side of her face, her nose and mouth were swollen and that the swelling and pain lasted for about a week. Her injuries were painful and she now has difficulty with vision in her left eye. The victim impact report also notes that neither the defendant not his family have made any approach to apologise for the incident.
8. This was an assault on an unaccompanied and elderly female who had been drinking and was therefore in a vulnerable state. The assault occurred in a dark area on the seawall and late at night. It is obvious the defendant used force to subdue the complainant hence the bruising to her forehead and her other injuries. Also obvious was his sexual intent to rape the complainant. He would have succeeded if the two men walking by did not intervene. This case calls for an imprisonment penalty to mark the seriousness of the offending and to hopefully deter the defendant from future reoffending because he already has a previous conviction in 2008 for actual bodily harm. An imprisonment penalty should also send an unambiguous message to males out there who may be thinking of doing this sort of thing.
9. I will deal firstly with the most serious charge that of the attempted rape. The maximum penalty for that is 14 years in prison. The prosecution suggest a start point sentence of 8 years. I agree with that suggestion but it must be upgraded to 9 years because of your previous conviction for an offence of violence. E sa’o o lea e iai lau solitulafono i le 2008 mo le fa’aoo manu’a? (Defendant said yes). That makes a start sentence of 9 years in prison Junior. From that you are entitled to a deduction for your guilty plea. Because that has saved the courts time and has saved the complainants having the further ordeal of a trial. I will deduct one-third of your sentence for your guilty plea that is a period of 3 years leaves a balance of 6 years.
10. If you had been a first offender you would have been entitled to a further deduction but you are not a first offender. If there had been an ifoga or a traditional apology of some kind by you or your family there would have been a further deduction but your pre-sentence report says nothing like that was done. There is also no evidence you have been punished in any way by your village council for this behaviour. It means there are no further deductions that can be made from your sentence Junior.
11. On the charge of attempted rape you will convicted and sentenced to 6 years in prison. But your time in custody awaiting sentence is to be deducted from that.
12. On the charge of indecent assault which also has a 14 year maximum. This arises out of your performing oral sex on the unconscious or semi-conscious complainant. This is after you assaulted her. So it is a bad indecent assault. You also hold a relevant previous conviction for this sort of behaviour. On that charge you will convicted and sentenced to 5 years in prison but that is to be concurrent to your other term of imprisonment.
13. On the third charge of actual bodily which has a 7 year maximum. I take into account the complainants injuries and the fact that this is your second conviction for actual bodily harm. One year is an appropriate term but that should be upgraded to 2 years because of your previous conviction. In respect of that matter you will be convicted and sentenced to 2 years in prison but that is to be concurrent to your other terms.
    

JUSTICE NELSON