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Police v Leota [2017] WSSC 113 (8 August 2017)

THE SUPREME COURT OF SAMOA
Police v Leota [2017] WSSC 113


Case name:
Police v Leota


Citation:


Sentence date:
8 August 2017


Parties:

POLICE (Prosecution) v UTUTAALOGA FERETI LEOTA male of Solosolo

Accused
Hearing date(s):



File number(s):



Jurisdiction:
Criminal


Place of delivery:
The Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Tafaoimalo Tuala Warren


On appeal from:


Order:
For both charges of rape, the accused is convicted and sentenced to 12 years imprisonment.
Finally in terms of orders, there will be an order permanently suppressing or prohibiting the publication of the name of the victim and any details that might identify her. The suppression order does not relate to the defendant.


Representation:
O Tagaloa for Prosecution
R Schuster for the accused
Catchwords:
Rape


Words and phrases:


Legislation cited:
Crimes Act 2013 s.49(1)(a)


Cases cited:
Police v Filipo [2011] WSSC 127

Police v Pauesi (9 May 2008)
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


BETWEEN


P O L I C E
Prosecution


A N D


UTUTAALOGA FERETI LEOTA male of Solosolo
Accused


Counsel:
O Tagaloa for Prosecution
R Schuster for the accused


Sentence: 8 August 2017


S E N T E N C E


THE NAME OF THE VICTIM IS PERMANENTLY SUPPRESSED.
The charge

  1. The accused appears for sentence on two counts of rape pursuant to s.49(1)(a) of the Crimes Act 2013. Each charge of rape carries a maximum penalty of life imprisonment.
  2. The accused was found guilty by assessors after a defended hearing.

The offending

  1. According to the evidence, sometime between 31 July 2015 and 1 September 2015, the victim lived with the accused and his family. The victim was 12 years old and in Year 6. The accused is the uncle of the victim’s father. On a Sunday during that time period, the victim, the accused, his wife and children had attended church. Upon return from church, they had toonai and after cleaning up, the victim went to her room to do some school work. The accused came into the room and asked her in a low voice to remove her clothes. She asked him aisea and he said she would not have to do feau anymore and e le toe fasia foi. The victim refused and he forcibly removed her clothes (fosi i le maso) and lay her down on the floor. He opened his pants and his ofuvae malumalu and then lay on top of her. He ate her neck, her body and her breasts. He then inserted his fingers into her vagina and inserted his penis into the victim’s vagina. He moved backwards and forwards(luma ma tua). She was moving around and crying from the pain. He got up and put on his pants and limped outside. Not long after, he came back inside the room and she had put her tshirt on. He took her tshirt off and ate her neck and breasts again and again inserted his penis into her vagina. He pulled his penis out of her vagina and she saw white fluid coming out of his penis. She saw her thighs were wet with fluid mixed with blood. The accused then put on his pants and sat on a box. At the time this occurred, the wife of the accused was doing her washing at the tap.

The accused

  1. As shown in the pre-sentence report, the accused is 53 years old. He was 51 years old at the time of the offending. He is married with six children and lives at Solosolo. His family relies on the employment of his eldest son and one of his daughters for financial support.
  2. According to his brother and son, the accused is caring and humble. He is supportive of his family and active in village matters.
  3. There are two testimonials in his favour from his Bishop and village mayor. The Bishop says that the accused is an active member of the church, holding positions in the church and belonging to one of the most devoted families in the congregation. He says the accused is humble, quiet and reliable.
  4. According to the village mayor, the accused is a matai of the village of Solosolo who is reliable and knowledgeable in village and farming matters.
  5. There is also a medical report from Doctor Titi Lamese in which he says that on 6 March 2015 the accused was diagnosed with diabetes Mellitus and started treatment for it.
  6. He paid a fine of $3500.00 and 1 cattle beast to the village as his fine.
  7. Probation does not make a recommendation for sentence.
  8. He is a first offender.

The victim

  1. According to the victim impact report, the victim is now 13 years old. She says that ever since the offending, she is scared of the accused and stayed silent as she was so afraid. In school she says she tends to sleep most times in class and could not focus on her studies.
  2. She no longer goes to school and does not want to go back to school because of what happened.
  3. The victim was 12 years old at the time of the offending.

Aggravating features of the offending

  1. The aggravating features of this offending are firstly, the age of the victim. She was 12 years old. The younger the victim of a sexual offence the greater the need for protection: This proposition was stated by the New Zealand Court of Appeal in R v Hamilton-Walli> (CA #160;49/79, 14 August 197od Woodhouse, Richardson and Somers JJ) to be so self-evident as to need no authority. In R v Peachey (CA 92/0 July, Gauanckhurst andt and Potter JJ), another New ZNew Zealand Court of Appeal decision, it it was stated that sexual offending against under-age children is consistently regarded as m as more serious than similar offending against adults. Young persons were more vulnerable and the law provided for their need for greater protection. The Sentencing Act 2016, section 7(1)(g) further reinforces this as the victim was particularly vulnerable because of her age which was known to the accused.
  2. The age difference of 39 years is also an aggravating factor. The accused is an adult, married with children and with immense life experience as opposed to this young girl of 12 years old.
  3. It is also aggravating that the accused is closely related to the victim and was given responsibility for the victim as the victim lived with his family and went to school. This is what we call in our culture ‘nofo aoga’. The accused is the uncle of the father of the victim and expected to protect her, a child in his family. Instead he took advantage of that power imbalance by causing extreme pain and suffering to this child under his protection. The breach of trust in this case is significant. The Sentencing Act 2016 in section 8 directs the Court in cases involving violence against persons under 18 years to consider, inter alia, the aggravating factors to the extent they are applicable in the case. One of those aggravating factors is the magnitude of the breach of the relationship of trust between the victim and the accused.
  4. This is premeditated offending which I find is an aggravating feature. It took place at a time when the victim was alone in her room doing her school work while the wife of the accused was outside doing her washing. After the first rape, the accused walked outside and came back inside the room and raped the victim again.
  5. Section 17 of the Family Safety Act 2013 directs the Court to consider as an aggravating factor against the accused if an offence took place within the context of a domestic relationship. “Domestic relationship” is defined in section 2 of the same Act as including where the victim and accused are family members related by marriage or blood or they are a person who has or had parental responsibility for that child. The accused is the uncle of the victim’s father. She lived as a child under the protection of the accused and his wife in the family of the accused. It is deplorable behaviour by the accused who was in a position of responsibility and trust in relation to this child and he took advantage of his vulnerable young niece.
  6. Rape is an inherently violent act, although there was minimal associated violence, in that he forcibly removed her clothes. According to the victim “ga fosi i le maso” when he removed her clothes. She was also moving around and squirming from the physical pain of sexual intercourse. The young victim was robbed of her virginity.
  7. The physical and psychological impact on the victim is taken into account as an aggravating feature. The impacts are seen in the Victim impact report and on the day of the hearing through the testimony of the victim herself. The reports says she is scared of the accused and now does not go to school because of this offending. During the giving of her evidence, she was visibly shaken and was told several times to remain calm.

Mitigating Factors

  1. I take into account the village penalty paid by the accused. The Court must, take into account in sentencing any compensation or reparation made by the accused under Samoan custom and tradition pursuant to section 7 of the Community Justice Act 2008.
  2. I take into account the testimonials provided in his favour. His good character according to his Bishop, village mayor and family members is further supported by the fact that he has not offended before.
  3. I take into account the apology made by the accused to the father of the victim. I accept he is remorseful as conveyed by defence counsel.
  4. I take into account his personal circumstances. He has a wife and six children who no doubt suffered as a result of this offending and will suffer today as a result of this sentence.

Discussion

  1. The charge of rape carries the highest penalty available under the criminal law and that is imprisonment for life. In Police v Filipo [2011] WSSC 127, the Court stated;

Rape is one of the most serious crimes as stated in the legislative provisions of most societies and was always regarded as such at common law. The reasons are self-evident.

  1. Vaai J in Police v Pauesi (9 May 2008) remarked about sentencing for rape offences;

In considering the sentence for sexual offences, particularly rape, the primary consideration is a term of imprisonment. There should be an element of deterrence to reflect the gravity of the offence to punish the offender, to deter the offender and to deter other like-minded people. The sentence is also to convey condemnation by society of such criminal conduct.

  1. In this case, there is a need to hold the accused accountable for the harm done to the victim, to promote in him a sense of responsibility for, and an acknowledgment of that harm, and to provide for the interests of the victim who was very young, vulnerable and defenceless at the time.
  2. There is also an overriding need to deter the accused and others from committing the same or similar offences and to protect the community from the accused. This protection is particularly important for children, the most vulnerable members of any community. It is of concern to the Court that this offending occurred within the sanctuary of a home, committed by a family member. A strong message from this sentencing is that this breach of trust is unacceptable and the Court will take a tough stance against this type of offending in an effort to eradicate this type of offending. There is a Samoan saying “ A malu i fale e malu foi i fafo” which means if you are safe in your family you will be safe outside. I sincerely hope for the young girls of Samoa that family and village leaders take heed of this.
  3. Prosecution has submitted that a starting point of 11 years imprisonment is appropriate in Band 2 of Key v Police. Defence Counsel submits that a starting point within Band 1 is more appropriate which is 8-10 years.
  4. In determining that starting point, I am guided by the New Zealand Court of Appeal case of R v AM (CA 27/2009, CA 32/2009). The Court of Appeal set sentencing bands for offending involving sexual violation.
  5. To be read in conjunction with R v AM, is the case of Key v Police [2013] WSCA(28 June 2013) where the Samoa Court of Appeal found it appropriate to issue a guideline decision relating to rape sentences and reminded us that the reasoning in that case (R v AM) and decisions reached relating to rape sentences, except for the actual term of imprisonment, are incorporated into and form part of the decision in Key v Police. Some uplift to the bands in R v AM was appropriate to reflect the greater maximum sentence in Samoa.
  6. The rape bands in Key v Police are;

(a) Rape band one: 8 – 10 years (Appropriate where the offending is at the lower end and where there is an absence of aggravating features or their presence is very limited);

(b) Rape band two: 9 – 15 years (Where violence and premeditation are moderate);

(c) Rape band three: 14 – 20 years (Offending where there are aggravating features at a relatively serious level); and

(d) Rape band four: 19 years to life (As well as the aggravating features in Band 3 it is likely to consist of multiple offending over considerable time. Repeat family offending would fall into this band).

  1. As stated in R v AM and reiterated in Key v Police, I bear in mind that ‘...what is required is an evaluation of all the circumstances” and “a mechanistic view is not appropriate”.
  2. In assessing culpability to determine a starting point in the case before me now, I take into account the ages of the victim and of the accused at the time of the offending. The accused was a grown married man of 51 years, and the victim was his 12 year old niece. He was 39 years older than her and she lived in his home while she attended school. This was a significant breach of trust. He raped her twice during the same offending. He not only caused her physical pain at the time of the offending but she now no longer attends school.
  3. I assess his culpability at a relatively high level as the aggravating features are at a relatively serious level.
  4. I will adopt the totality approach to this sentence and give one sentence for both counts of rape, given the proximity in time. Sapolu CJ explained this approach in Police v P [2009] WSSC 16 (2 March 2009), “ you take into consideration the totality of the offending by the accused in terms of all the offences on which he is appearing for sentence. This is also relevant in setting a starting point for sentence”.
  5. Obviously here for a starting point, the gravity of the offending and his culpability is increased by the fact that sexual intercourse occurred twice.
  6. Having therefore considered all the circumstances, and in particular having regard to the aggravating features relating to this offending (there being no mitigating features of the offending), I place this offending in the middle to upper end of rape band three (14-20 years) where there are aggravating features at a relatively serious level.
  7. I therefore take 17 years imprisonment as the starting point for sentence. I deduct 1 ½ years for his penalty to the village. I deduct 1 ½ years for his good character as attested to by those who provided character testimonials. He has been law abiding prior to the offending. I deduct 6 months for his personal circumstances, in particular his family. I deduct 1 year for his apology and remorse. Finally I deduct 6 months on the grounds of compassion given his medical condition.

The result

  1. For both charges of rape, the accused is convicted and sentenced to 12 years imprisonment.
  2. Finally in terms of orders, there will be an order permanently suppressing or prohibiting the publication of the name of the victim and any details that might identify her. The suppression order does not relate to the defendant.

JUSTICE TAFAOIMALO TUALA WARREN

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