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Levy v Police [1996] WSCA 6; 05 1996 (29 August 1996)

IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA

C.A. 5/96

BETWEEN

ONESEMO LEVY
of Sinamoga
Appellant

AND

THE POLICE
Respondent

Coram: The Rt Hon. Lord Cooke of Thorndon, President
The Rt Hon. Sir Gordon Bisson
The Hon. Mr Justice Sheppard

Hearing: 29 August 1996

Counsel: P. Fepulea'i for Appellant
Potoa'e Tanielu for Respondent

Judgment: 29 August 1996

JUDGMENT OF THE COURT
DELIVERED BY SIR GORDON BISSON

The appellant was charged on 10 September 1995 that at Taumesina on 8 September 1995 he attempted to rape a named female. He pleaded not guilty. His trial did not take place until 14 May 1996. He was found guilty by the panel of assessors and on 17 June 1996 he was sentenced by the Chief Justice to three and a half years imprisonment.

From this sentence he has appealed to this Court on the ground that on the facts of his case the sentence is manifestly excessive when compared with other cases of attempted rape and rape taking into account all the circumstances.

The facts can be quite briefly stated. The appellant is 23 years of age and on the day of the offence was working as a taxi driver. The complainant, a young woman 18 years of age left her place of work during the afternoon to do some shopping. The appellant took her in his cab to the place where she did her shopping. She was known to the appellant as he used to visit another girl who worked with her. He waited for her and, when she returned, he did not take her where she wanted to go but drove elsewhere. While driving he asked for payment of his fare and threatened if she did not pay he would "do something bad to her". This happened more than once and she paid him various amounts but he did not drive her to her destination. Eventually he stopped. She gave evidence that he locked the car, held her down. Got on top of her, removed some of her clothing, unzipped his shorts and penetrated her with his penis.

The appellant gave evidence. He gave a different account. He admitted he threatened to do something bad to her if she did not pay the fare and admitted he wanted sexual intercourse with her. He further admitted that he reclined the seat and go on top of her and tried to reach her private part, but he said that when he saw the expression on her face change and she was reduced to tears, he got off her.

The appellant said he wanted sex but not by force. However, it was clear on his own admission that he attempted to have sex with her without her consent. That would be the bad thing he had threatened to do to her. There was no evidence from the appellant that he tried to achieve his sexual desires in a consensual manner and he has not appealed his conviction.

The complainant was examined by a doctor that night and he found no evidence of recent injury and swabs revealed no presence of spermatozoa. However there was evidence that she was greatly distressed after the assault.

The Chief Justice took into account as a mitigating feature that the appellant had desisted in view of the complainant's distress, but nevertheless regarded this attempt to rape as a very serious matter and bore in mind the interests of the victim as well as the interests of women in general, who have to be protected from men who are inclined to attempt to have sexual intercourse without consent freely and willingly given. This Court entirely agrees.

Although not mentioned by the Chief Justice, but no doubt taken into account by him, an aggravating feature of the case is that the appellant was a taxi driver and in the course of his work he threatened and sexually assaulted this young woman, a fare-paying passenger, who should have been safe while a passenger.

The maximum term of imprisonment for attempted rape is 10 years and counsel for the appellant has produced a list of sentences imposed in various cases of rape and attempted rape, dating from 31 September 1994 to 15 July 1996. Counsel for the respondent has submitted another list of sentences in respect of attempted rape cases from 1991 to 1996.

It can be seen from the cases listed that there is a range of sentencing for attempted rape from as low as a fine, which counsel does not seek in this case, to four years imprisonment. There are other sentences of three years eight months and three and a half years, but none were short terms of imprisonment. It is difficult to compare cases as the facts, aggravating and mitigating features can vary markedly and the personal circumstances of the victim and the person being sentenced. Some cases have involved substantial penalties being paid within the village and formal apologies, with gifts being taken to the complainant's family. In those cases the circumstances have to be taken into account by the Court and result in lesser sentences. There is no evidence of that in this case.

Some cases of attempted rape come perilously close to rape. On the appellant's own evidence he just stopped in time and the Chief Justice gave him credit for that. But this was a planned attempt in that the appellant did not take the complainant to her requested destination, he threatened her and forced himself on her. As a taxi driver he was responsible for the safety of his passenger and, although no injuries were inflicted, he caused great distress and an attempt to violate a young woman sexually in itself involves some violence or degree of force and is to be condemned and punished to demonstrate that such conduct will not be tolerated in a civilised society.

The appellant is a first offender and has a good family and work record. He has expressed remorse. He deserves some leniency as the Probation Report suggests, but it also recognises the seriousness of the offence.

The Chief Justice saw and heard both the complainant and the appellant give evidence. On sentencing he would have known from his own observation the degree of culpability and he saw fit to impose a sentence of three and a half years. The appellant has failed to prove the sentence was manifestly excessive. The appeal is dismissed.

Solicitors:

Patrick Fepulea'i, Apia, for Appellant
The Attorney -General's Office, Apia, for Respondent