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Police v Ainoa [2015] WSSC 187 (25 November 2015)

SUPREME COURT OF SAMOA
Police v Ainoa [2015] WSSC 187

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S1002/15

BETWEEN

P O L I C E
Prosecution

A N D

PETELI SITUE AINOA a male of Tuanai.
Accused

Counsel:
R Titi for prosecution
L J Brunt for accused

Sentence: 25 November 2015

S E N T E N C E

The charges

1. The accused Peteli Situe Ainoa is a 19 year old male of Tuanai. At the time of this offending he was 18 years of age. He is appearing for sentence on seven charges of sexual violation by rape, contrary to s.49 (1) and (2) of the Crimes Act 2013, which carries a maximum penalty of life imprisonment under s.52 (1) and one charge of having sexual connection with a child defined to mean a person under the age of 12 years, contrary to s.58 (1), which also carries a maximum penalty of life imprisonment.
2. Initially, the accused pleaded not guilty on 7 May 2015 to all the charges against him and the matter was set down for hearing during the week commencing 3 August 2015. As a result of a plea bargain between counsel for het accused and counsel for the prosecution, the matter was further adjourned to 7 September 2015 for a change of plea. On 7 September 2015 after some of the charges were withdrawn by the prosecution, the accused pleaded guilty to the remaining seven charges of sexual violation by rape and the one charge of having sexual connection with a child under the age of 12 years for which he is now appearing for sentence.

The offending

3. This offending took place on eight separate occasions for about five to six months from October 2014 to March 2015. The victim is the accused’s biological sister. She is now 9 years old but was 8 years at the time of the offending.
4. As shown from the prosecution’s summary of facts accepted by the defence, on a date between 1 October and 25 November 2014 while the accused and the victim were alone at their family’s home at Tuanai, the accused held the victim’s hand and pulled her into the shower. The accused then removed the victim’s clothes, laid her on the floor of the shower, and performed oral sex (mouth to genitals) upon her before inserting his penis inside her vagina and had sexual intercourse with her. These sexual acts were performed on the victim without her consent.
5. On 26 November 2014 when the accused and the victim were then living with an aunt at Tuanai, the accused took the victim to the house he was occupying and into his bedroom, laid her on his bed, and performed oral sex (mouth to genitals) upon her before inserting his penis inside her vagina and had sexual intercourse with her. This was also done without her consent.
6. On 2 March 2015 in the morning while the victim was picking the rubbish around their house, the accused walked over to her, took her by the hand, and pulled her into the house he was occupying. He then took the victim into the bedroom, removed her clothes, laid her on his bed and had sexual intercourse with her. When the victim screamed because it was painful, the accused covered her mouth with his hand. Again the victim did not consent.
7. The next day, 3 March 2015, when the victim was returning home from school, she met the accused who was standing in front of the church next to their family land. The accused then took the victim by the hand and pulled her to the toilets inside the church compound. Once inside the toilets, the accused removed the victim’s clothes, laid her on the floor, and kissed her on her mouth, breasts, and genitals before inserting his penis inside her vagina and had sexual intercourse with her. The victim also did not consent.
8. On 4 March 2015 in the morning while the victim was picking the rubbish around their house, the accused called out from inside the house he was occupying to the victim to come to him. When the victim asked what he wanted, the accused insisted that she come over to him. The victim went over and the accused pulled her into his bedroom, removed her clothes, and kissed on the lips, breasts, and genitals before having sexual intercourse with her. Again the victim did not consent.
9. On 5 March 2015 in the morning while the victim was picking the rubbish around their house, the accused walked over, held her by the hand, and took her to an outdoor toilet near their house, removed her clothes, and had sexual intercourse with her. The victim also did not consent.
10. Again on 6 March 2015 when the victim went to pick up rubbish around their house, the accused went over, held her by the hand, and pulled her into the plantation on their land, removed her clothes, laid her on banana leaves, and had sexual intercourse with her without her consent.
11. Then on 10 March 2015 while the victim was at school, the accused approached her during the school interval and told her to go with him. The accused then took the victim to the bushes nearby, removed her clothes, lad her down, and had sexual intercourse with her. The accused then heard the school bell to end the interval and told the victim to quickly put on her clothes and return to school. The accused told the probation service that this matter came to light when he picked up the victim during the school interval and the victim’s teacher noticed the victim’s disappearance and started looking for her.
12. As it appears from the pre-sentence report, the accused told the probation service that the main contributing factor to his offending was his watching pornographic materials he downloaded from his mobile phone. This must have polluted his mind leading him to become a sex predator on his young sister.

The accused

13. The pre-sentence report shows that the accused is single and had left school after Year 10. At the time of the offending he was employed at Yazaki. His employment terminated as a result of this offending.
14. The accused’s father told the probation service that his son is an honest, loving, and caring person. I find it difficult to believe the testimonial from the accused’s father given what the accused did to his own sister. These are not the actions of a caring and loving person. The testimonial from the pastor of the accused’s church at Tuanai states that the accused was a reliable member of his church and performs his duties to the church to the best of his abilities. The testimonial from the bishop of the Mormon Church at Mulifanua where the accused is now staying as a condition of his bail states that the accused is a keen and hardworking person in the service of the church. The accused is also a first offender.

The victim

15. The victim is a student and still attending school. The victim impact report shows that every time the accused had sexual intercourse with her she felt scared and painful in her vaginal area. Even now she still thinks of what the accused did to her which is affecting her concentration on her studies. She is also very angry with the accused and does not regard him as her brother anymore and does not want to see him again.

The aggravating features relating to the offending

16. This is a serious and prolonged offending which involved sexual violation and abuse by a brother of his sister. In our Samoan custom, a sister is regarded as the black spot in the eyes of her brother. For a brother to have sexual intercourse with his sister is a very serious offence in the eyes of our community and such conduct is usually referred to as “mataifale”. The aggravating features relating to the offending are as follows:

(a) Breach of trust

17. The accused and the victim are brother and sister. The victim is entitled to expect love and safety from the accused. She was sexually violated and abused by the accused. She had also trusted the accused as her brother but the accused seriously abused that trust by becoming a sex predator on her.

(b) Extent or duration of the offending

18. This is not a one-off incident of rape. It is seven incidents of rape and one incident of sexual connection committed over a period of about five to six months. Perhaps it would not have stopped if the victim’s teacher had not noticed the disappearance of the victim during the school interval and started looking for her.

(c) Place of first offending

19. The first incident of sexual violation by rape was committed upon the victim inside her family home. A child is entitled to expect safety in his/her home. But in this case the victim was sexually violated in her own home.

(d) Age difference

20. The age difference of 10 years between the accused and the victim is also an aggravating feature relating to the offending.

(e) Young age of victim

21. The young age of the victim is also an aggravating factor relating to the offending

(f) Vulnerability

22. The young age of the victim and the trust she had for the accused as her brother placed her in a vulnerable position in relation to the accused.

(g) Impact of offending on victim

23. Even though the victim did not sustain any physical injuries during any of these incidents, she has been psychologically affected. She still thinks about what the accused had done to her and that has affected her concentration on her studies. She is also now very angry with the accused and does not regard him as her brother anymore.

Mitigating features relating to the accused as offender

24. The following are the mitigating features relating to the accused as offender:

(a) Previous good character

25. The testimonials from the accused’s father and church pastor show that he is a person of moderately previous good character.

(b) Young age of accused

26. The accused is of relatively young age. He is now 19 years of age but was 18 years at the time of the offending. His future is still before him.

(c) Remorse

27. I find it difficult to accept that the accused is totally remorseful. It is true that he apologised to his parents. However, what happened was that when a probation officer interviewed the accused in the presence of his parents, he maintained that he is innocent. It was only after the probation officer had asked the accused’s parents to leave the room where the interview was held that he admitted his guilt to the probation officer. The accused’s parents were then brought back and the probation officer relayed to them the admission by the accused. It was then that the accused apologised to his parents. This does not appear to have been a spontaneous apology which suggests heartfelt remorse.
28. The accused had also initially pleaded guilty to the charges against him. It was after a plea bargain as a result of which some of the charges against the accused were withdrawn that he decided to withdraw his not guilty plea and entered a guilty plea to the remaining charges.

(d) Guilty plea

29. The accused’s guilty plea, though somewhat belated, is a mitigating feature personal to him as offender because it has saved the Court time and resources and spared the victim from having to re-live this unhappy experience in public.

Discussion

30. In passing sentence, I will apply the totality principle, that is to say, by having regard to the total criminality of the offending for setting a starting point for sentence. I will also have regard to the sentencing bands laid down by the Court of Appeal in Key v Police [2013] WSSC 3 following the decision of the New Zealand Court of Appeal in R v AM [2010] NZCA 114. Applying those considerations, and having regard to the aggravating features relating to the offending, I will take 18 years as the starting point for sentence. I will deduct 2 years for the accused’s moderately previous good character and his relatively young age. That leaves 16 years. I will further deduct 2 years and 6 months for the guilty plea. That leaves 13 years and 6 months.

The result

31. The accused is convicted and sentenced to 13 years and 6 months on each of the charges against him. All sentences to be concurrent. The time the accused had spent in custody pending the outcome of this matter is to be further deducted from that sentence.

CHIEF JUSTICE