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Police v Niusila [2024] WSSC 125 (16 December 2024)

IN THE SUPREME COURT OF SAMOA
Police v Niusila [2024] WSSC 125 (16 December 2024)

THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

ATAPANA NIUSILA, male of Satapuala and Faletagaloa, Savaii

Defendant

Counsel: Attorney General’s Office for Prosecution
I Sapolu for the Defendant

Sentence: 16 December 2024

SENTENCING OF JUSTICE TUATAGALOA

1. The defendant, Atapana Niusila was found guilty by a panel of assessors on 28 February 2024 to one count of rape.
2. The penalty for the offence of rape is maximum life imprisonment.^[1]

The offending

3. The facts of this case have been traversed throughout the assessor trial. For purposes of sentencing the following facts are taken into account:
   • The victim is the niece of the defendant’s wife. The victim was staying with the defendant and his wife and their daughter at the time of the offending in April 2021. Shortly after, the victim left and returned to her family.
   • The defendant and his wife operate two fishing boats. The defendant raped the victim when the defendant’s wife (aunt) and their older sons left in the early hours of Sunday morning to go sell their fish at the fish market in Apia leaving only the defendant and the victim at home. The defendant’s daughter was at the time spending the weekend with one of their relatives.
   • The offending took place in the bedroom where the victim and the defendant’s daughter sleep.
   • The defendant was 56 years old and the victim was 17 years old at the time of the offending.

The defendant

4. The defendant from the PSR is the youngest of eleven (11) children and have six (6) children with his wife. All his children) have grown up except for one daughter who was still at school at the time. He was originally from Faletagaloa, Savaii but at the time of the offending was living with his wife at the wife’s family in Satapuala.
5. The defendant is a first offender. First offender status is linked to previous good character which is a mitigating factor.

The Pre-Sentence Report (“PSR”)[2]

6. The PSR prepared by Probation has the defendant conveying to probation that a reconciliation with the victim and her parents had previously been attempted and says that both families are now on good terms. The defendant also conveyed and confirmed by the village pulenuu that he had carried out a village penalty with a $3000 monetary fine, an ie tele and food^[3]. The victim by way of letter confirmed the reconciliation between the families.
7. The written testimonials by the defendant’s church minister, village mayor of Satapuala and his daughter confirm the defendant’s previous good character. They speak of him as a reliable, responsible and hardworking person to his church, family and village.

Prosecution submissions

8. The prosecution submits the following as aggravating factors:
   • (a) The offending was committed within the home – the place where the victim is entitled (and should) to feel safe and protected.
   • (b) The defendant being the uncle have abused a position of trust in relation to the victim.
   • (c) The victim was in a vulnerable state – not only she was asleep but was at home, alone with the defendant.
   • (d) Use of force – the defendant held the victim down when she tried to get up and away from the defendant.
   • (e) Pain felt by the victim when he inserted his penis into her vagina.
9. The prosecution acknowledge that the defendant is a first offender however says that being a first offender is not a mitigating factor at most is neutral though previous convictions may be aggravating factors. That previous good behavior or good character may however be a relevant mitigating factor.
10. The prosecution refers to various sentencing decisions of this court for guidance and for consistency. Prosecution accordingly recommends a starting point of 13 years above mid-range of Band 2 in Key v Police [2013] WSCA 03.

Plea in mitigation

11. Counsel for the defendant submits in mitigation that the victim has forgiven the defendant and there has been a family reconciliation. There is a letter from the victim requesting for the court not to impose a sentence on the basis that the matter has already been reconciled with their family. I disagree.
12. Counsel submits that this is a single incident of rape, that there was low level of planning and premeditation that there was no collateral violence other than violence inherent in any rape offending and there was no threat of violence. Accordingly, Counsel submits that it should fall within the lower end of Band 1 of 8 – 10 years. However, Counsel’s instructions are to seek a penalty by way of substantial fine with part of it to be paid to the victim as reparation pursuant to section 24 of the Sentencing Act 2016.
13. The defendant is of prior good character as confirmed by the written testimonials provided on his behalf.

Discussion

14. I continue to stress the following:
    • There is a need to protect women and young girls from those who continue to commit such heinous acts or behavior. The Court will never tire of imposing sterner sentences to send the message out that rape is a violent crime and society should never condone such behavior but should do the best it can to stamp it out.
15. Sexual abuse of young girls within families by older male relatives are becoming a norm. This shows a breakdown within our cultural values, religious beliefs and general principles relating to human ethos. The young girls are no longer safe in the home environment supposedly protected by their male relatives instead they are more at risk of being sexually abused at home than elsewhere. Where would they be safe if they are not safe at home?
16. There are no aggravating features personal to the defendant as offender but there are several as to his offending. These are:
    • (a) Opportunistic v Premeditated: The offending was more opportunistic. The opportunistic is the fact that the victim was home alone with the defendant who used that opportunity to do what he did. The Court of Appeal in R v AM^[4] says of opportunistic offenders:
      • “...offenders who show predatory sexual behavior may be more likely to offend in an opportunistic manner. They should not be treated as lacking premeditation.”
    • (b) Vulnerability of victim: The victim was in a vulnerable state and position at the time of the offending as she was not only sleeping but was also alone with the defendant at6 home. The victim never thought that the defendant whom she see as a father figure would do something like that to her. The age difference of 40 years also reflects vulnerability on the part of the victim.
    • (c) Violence involved: Violent is inherent in the offence of rape because it is committed with force, without the consent of the victim. It is without a doubt that the victim was over-powered by the defendant with the defendant holding the victim down when she tried to get up and away from the defendant. The degree of violence is therefore considered moderate to high.
    • (d) Breach of trust: The familial connection between the defendant and the victim albeit through marriage. The victim is the wife’s niece who was asked by the defendant and his wife to live with them and their daughter. The defendant should have extended his love and respect to his daughter to the victim but, instead he raped her.
    • (e) Offending took place in the context of a domestic relationship pursuant to section 17 of the Family Safety Act 2013.^[5]
    • (f) Impact on victim: There is no doubt that sexual offending will always have an impact on the victim. What that impact is, is not known at the time of sentencing as there was no Victim Impact Report (“VIR”).
17. No two cases are the same. The golden rule is, each case is sentenced accordingly to its own circumstances.
18. In the circumstances of this case, a custodial sentence is appropriate. The appropriate starting point is 9 years of Band 2 in Key v Police (supra). The defendant is of prior good character for the last 56 years and for that I deduct 2 years; for the reconciliation with the victim’s family and the village penalty I deduct further 18 months. This leaves 66 months or 5 years and 6 months.

Sentence Imposed

19. The defendant, Atapana Niusila, is convicted and sentenced to 5 years and 6 months’ imprisonment less any time in custody.

JUSTICE TUATAGALOA

^[1] Crimes Act 2013, ss. 49(1)(a) and 52(1)
^[2] Presentence Report, dated 14 November 2024
^[3] Letter by Sione Lasei marked ‘d’ attached to defense counsel plea in mitigation.
^[4] R v AM [2010] NZCA 114, [2010] 2 NZLR 750
^[5] Section 2 defines ‘domestic relationship’ to include relationship related by marriage or blood.