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Siueva v Attorney General [2020] WSCA 5 (2 September 2020)

IN THE COURT OF APPEAL OF SAMOA
Siueva v Attorney General [2020] WSCA 5

CA30/19

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

BETWEEN:

TAMAPA’A SIUEVA

Appellant

AND:

ATTORNEY GENERAL,

Respondent

Court: The Honourable Justice Fisher
The Honourable Justice Harrison
The Honourable Justice Nelson

Counsel: A. Su’a for the Appellant

L. Su’a-Mailo for Respondent

Hearing: 4 August 2020

Judgment: 2 September 2020

JUDGMENT OF THE COURT

Introduction

1. Tamapa’a Siueva was tried in the Supreme Court before Justice Tuala-Warren and assessors and found guilty of one count of rape, three counts of sexual connection with a child under 12 years, and one count of an indecent act on a child. He was convicted and sentenced to a term of 14 ½ years’ imprisonment.
2. Mr. Siueva appeals against both his conviction and sentence.

Facts

3. The prosecution case was that on or about 27 March 2017 Mr. Siueva was watching a rugby match being played at a local school. He was then aged 18 years. The six year old victim was a pupil of the school. He approached her as she walked past on her way home and led her to bushes nearby on the pretext of enlisting her assistance to find his money.

While they were at the bushes Mr. Siueva pulled up the victim’s top and she took off her shorts as he directed. He then removed her clothes, placed them on a fallen tree nearby and returned naked to the victim. He told her to rub their private parts while they lay on the ground.

Mr. Siueva parted the victim’s legs and placed his penis inside her vagina. She felt the movement following penetration which caused her pain. She cried out but Mr. Siueva covered her mouth a an attempt to prevent her from attracting attention. At trial, the victim demonstrated the way in which Mr. Siueva’s penis penetrated her vagina.

Mr. Siueva then poked the victim’s vagina, first with his index finger which she also demonstrated at trial, and then with a piece of stick. He directed the victim to suck his penis. She refused, so he forced his penis into her mouth. He put on his clothes but returned to suck the victim’s vagina.

Following her return home, the victim complained to her mother that her vagina hurt and, the next morning, that she had a headache.^[1] The victim’s mother complained to the police. Mr. Siueva was interviewed and made a caution statement. He admitted leading the victim to the bushes; kissing her and taking off her clothes; touching her vagina with his fingers; performing oral sex on her; and directing her to suck his penis. Mr. Siueva did not give evidence at his trial or call any witnesses in his defence.

Although Mr. Siueva had pleaded not guilty to all charges, Ms. Su’a-Mailo for the Attorney-General emphasises that the only charge in material dispute at trial was that of rape by penile penetration.

Conviction

(a) Fresh Evidence

9. Mr. Su’a advanced Mr. Siueva’s appeal at cost conviction on the ground that the assessors’ verdict on the charge of sexual violation by rape was unreasonable or could not be supported considering the evidence produced at trial. He relied on certain passages from the victim’s evidence together with a medical report which was not tendered at trial.
10. It is appropriate for us to address the issue of the medical report first. On 6 September 2017 Dr. Ulai Tapa Fidow prepared a brief report based on a gynaecological examination of the victim on 4 April 2017, at least a week after the offending. Dr. Fidow reported that on a pelvic inspection the victim’s hymenal membrane was intact.
11. The prosecution disclosed the existence of this report before trial to Mr. Su’a and advised that it did not intend to produce it because Dr. Fidow was unavailable. Mr. Su’a did not object or apply to the Court for an order directing production of the report in its author’s absence. Ms. Su’a-Mailo objected to Mr. Sua’s reliance upon the report before us in supportr. Siueva’s convictioiction appeal.
12. Accordingly, we advised Mr. Su’a that we would consider the issue on an oral application for leave to admit fresh evidence on appeal. In order to succeed an applicant must establish these three elements:^[2]
    • (a) the fresh evidence could not reasonably have been given at trial;
    • (b) the fresh evidence must be such that when viewed in combination with the evidence given at trial it can be said that the Judge or assessors’ acting reasonably would have acquitted or convicted the defendant; and
    • (c) the fresh evidence is credible in the sense that it is capable of belief.
13. The third element is not in dispute. However, Mr. Su’a has failed to satisfy the first two elements. First, the evidence is not fresh in the sense that it is new. It was freely available and could have been tendered at trial on application, either as part of the documentary record or by seeking an adjournment of the trial until Dr. Fidow was available. Alternatively, taking the doctors evidence via video-link was a technology available at the time.
14. Second, the evidence, even if it was fresh, falls well short of meeting the high threshold required to establish that the report’s production when viewed in combination with the other evidence would have resulted in an acquittal. We are not satisfied that the report would have been determinative of the issue of penile penetration. The fact that the victim’s hymen was intact on examination is not conclusive evidence that it was not penetrated at least a week earlier. We take notice of the body of expert medical opinion to this effect. And, as Ms. Su’a-Mailo submits, the police would have wished to lead further evidence on this issue at trial if the report had been produced.
15. Mr. Siueva’s application to lead fresh evidence is declined.

(b) Rape

16. Mr. Sua’s one ground of appeal against conviction relies primarily on the victim’s evidence under cross examination that Mr. Siueva’s penis was not hard but soft and appeared to be hanging at the time of penetration. In these circumstances, Mr. Su’a submits, penile penetration would have been impossible and the assessors’ verdict was thus unreasonable.
17. Mr. Su’a cross examined the victim carefully about the issue of penile penetration. She reaffirmed her evidence in chief that the penetration occurred. When asked why she screamed out loud, her response was:
    • “... because it was painful when Pa’a put his penis in my vagina.”

In answer to a further question from Mr. Su’a the victim repeated her evidence of penile penetration.

18. Mr. Su’a later asked the victim whether at the point of penetration Mr. Siueva’s penis was “hard or soft”. She answered the latter, and agreed that it was still soft while it was inside her vagina. We note that that question was premised on an acknowledgment of penetration with which the victim agreed. We note also, as Ms. Su’a-Mailo emphasises, that the victim never used the words “hanging” which Mr. Su7;a attributed to her in r in his submissions.
19. A verdict is only unreasonable if, having regard to all the evidence, the Court coul could not reasonably have been satisfied to the required standard that the accused was guilty.^[3] The question is whether there is evidence upon which reasonable assessors, properly directed, could convict.^[4] In this respect it is important to note that an appellate Court is performing a review function, not substituting its own view of the evidence, and must give appropriate weight to such advantages as the assessors’ may have had.^[5]
20. We are not satisfied that the assessors’ verdict was unreasonable. To the contrary, it had a sound evidential foundation. The assessors had the advantage of seeing and hearing the victim giving evidence in chief and under cross examination. Notably, she was consistent in her assertion of penile penetration when challenged by Mr. Su’a. Even after agreeing that Mr. Siueva’s penis was soft, she repeated that penetration occurred. A six year old child giving evidence of harrowing events which occurred two years earlier will inevitably suffer a degree of confusion. However, what is striking about the victim’s evidence in this case is its consistency throughout on the core allegation of penile penetration.
21. Mr. Su’a also relied on Mr. Siueva’s caution statement and its absence of an admission of penile rape. The transcript confirms that the interviewing officer did not question him about the rape allegation. His silence can hardly be elevated to a denial in circumstances where he never affirmatively answered the victim’s evidence other than through his not guilty plea.
22. The appeal against conviction is dismissed.

Sentence

23. Tuala-Warren J, who had the benefit of presiding at trial, adopted a starting point of 18 years imprisonment. She placed weight upon the aggravating features of the offending. She emphasised its premeditation; the victim’s extreme vulnerability and defencelessness given her age; the extent of harm to her and the violence, depravity and cruelty of the offending. She placed weight on the sentencing principles of deterrence, accountability, and protection of the interests of the victim and of the public in general, particularly young children.
24. The Judge was satisfied that the offending fell within the upper range of what is known for sentencing purposes as rape band three of 14 to 20 years.^[6] The prosecution had submitted that a starting point of 20 years should be adopted. Mr. Su’a proposed three years. Before us, he more realistically accepted that a starting point within rape band three was appropriate but more at the bottom end, about 14 years imprisonment.
25. Justice Tuala-Warren adopted a starting point of 18 years against which she allowed a discount for youth and previous good character of three and a half years. She imposed terms of 14 ½ years imprisonment for rape, 10 years imprisonment for each count of unlawful sexual connection and convicted and discharged Mr. Siueva on the charge of indecent assault. All sentences were directed to be served concurrently.
26. We are satisfied that the starting point adopted by the Judge while stern was within range. The offending fell clearly within rape band three. It was characterised by aggravating features at a relatively serious level. All rape by definition has elements of cruelty, callousness and violence. But those three factors were seriously compounded here by the victim’s age and the depravity of Mr. Siueva’s conduct. The Judge was correct to emphasise that Mr. Siueva’s violence deprived the victim of her sexual autonomy. It is plain that she is suffering and will continue to suffer the legacy for the rest of her life. In her mother’s words, “She’s a bit slow mentally since this happened.” We accept that its effect has been profound.
27. The only issue is whether the judge allowed a sufficient discount for age and previous good character. She reduced the starting point of 18 years by three and a half years or slightly under 20% to allow for these two factors. Mr. Su’a submitted that the length of the sentence was excessive given Mr. Siueva’s immaturity and inexperience of life; and that leniency was justified accordingly
28. There are a number of unsettling factors in this case. One is that an 18 year old man of otherwise good character would commit crimes of such depravity on a young girl. His actions were apparently completely out of character and without any explicable reference to his background. In this respect it is of concern that apart from a short pre-sentence report and brief character references there was no material before the sentencing judge on which she might take account of the effect of Mr. Siueva’s youth or his mental condition on his offending or by which she might evaluate his long term risk to public safety apart from the offending itself.
29. There has been a growing judicial recognition in recent years of the effect of youth in criminal offending and its interrelationship with sentencing principles. In R v Churchward^[7] the New Zealand Court of Appeal comprehensively reviewed the principles relating to youth offending in the context of an appeal against a sentence of minimum term of imprisonment of 17 years within a lead term of life imprisonment imposed on a 17 year old woman following a conviction for murder. In allowing the appeal in circumstances where a considerable volume of material was available about the appellant’s personal circumstances the Court identified a number of important factors:
    • (a) There are age related neurological differences between young people and adults. Cognitive, emotional and psychological immaturity can contribute to a breach of the law. While this leads to a reduction in culpability, it does not excuse a young person from taking responsibility for his or her offending;
    • (b) Imprisonment can have a greater effect on young people than on mature adults and long sentences may be crushing for them. A sentence which might otherwise be appropriate for an adult can become disproportionately severe for a young person. There is evidence that adolescents experience high levels of depression, anxiety, suicidal ideation and self-injurious behaviour while in prison. Recognition of this factor preserves the principle of mercy in sentencing.
    • (c) Offending by young people is frequently a phase which passes fairly rapidly and thus a well-balanced approach is necessary to avoid alienating them from society by the imposition of a lengthy term of imprisonment. Young people have a greater capacity than adults for rehabilitation, particularly given their undeveloped characters. They should not be regarded as beyond help, even after serious offending, unless there is no escape from that conclusion.
    • (d) On the other hand, where the offending is grave, the scope for taking account of youth is limited if the offending raises concerns about public safety. The requirement for deterrence and denunciation is also relevant.
30. All these factors require careful evaluation on sentencing, especially where the offending is serious and a long term of imprisonment is in prospect. In the absence of the necessary information we cannot carry out that task or properly assess whether the Judge’s allowance for youth was appropriate in the circumstances of this offending. We appreciate the limitations on the resources available to the Supreme Court but we are satisfied that the sentencing should be reconsidered there with the benefit of further relevant material about Mr. Siueva’s background. Arguably a composite allowance of 20% for youth and good character against a starting point at the high end of the available range is insufficient to meet the principles and purposes of sentencing. We endorse the Judge’s condemnation of the depravity of Mr. Siueva’s offending but the crushing effect of a long prison sentence on an 18 year old with a previously unblemished character in our view merits reassessment.
31. Accordingly we are allowing the appeal against sentence and remitting its determination to the Supreme Court for reconsideration with the benefit of further material such as for example a mental health analysis and a supplementary pre-sentence report. Further information on Mr. Siueva’s background, such as from his family, school friends and the wider community would undoubtedly also assist.

Result

32. The application for leave to adduce further evidence is dismissed.
33. The appeal against conviction is dismissed.
34. The appeal against sentence is allowed and the sentencing is remitted to the Supreme Court for reconsideration.
    

HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE HARRISON
HONOURABLE JUSTICE NELSON

^[1]The victim’s mother responded by beating her on the mistaken belief that her husband was responsible.

^[2]Section 157, Criminal Procedure Act 2016.
^[3]Elia v Attorney General [WSCA 14] 7 November 2014, Owen v R [2007] NZSC
^[4]Faamoe v Attorney General [2011 WSCA] 5 August 2011
^[5]R v Munro [2007] NZCA 510, affirmed in Owen v R [2007] NZSC 102

^[6]Key v Police [2013] WSCA (28 June 2013), applying and adapting R v Am CA27/2009, CA32/2009, modified to take into account that the maximum term of imprisonment for rape in Samoa is life whereas in New Zealand it is 20 years.

^[7]R v Churchward [2011] NZCA 531.