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Police v Alanese [2007] WSSC 17 (13 March 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

KERESOMA LEASI ALANESE
male of Faiaai and Sasina Savaii
Accused

Counsel: L M Sua for prosecution
A Roma for accused

Sentence: 13 March 2007

SENTENCE

The accused who is 15 years old, but 14 years and 6 months old at the time of the present offence, is appearing for sentence on the serious charge of rape which carries a maximum penalty of life imprisonment. Even though the accused initially pleaded not guilty to the charge, counsel for the accused told the Court that all along he had been indicating that there was a possibility of a change of plea to one of guilty. What made the defence hold back from entering a guilty plea was because he was awaiting the prosecution’s trial documents in order to obtain instructions from the accused on certain relevant matters.

The pre-sentence report shows that the accused’s date of birth was 2 August 1991. This offence occurred in 6 February 2006. It appears from the summary of facts which was admitted by the accused that at the relevant time, the accused was staying with his parents at Faiaai in Savaii. Their house is next door to the house of the family of the victim.

On Monday morning, 6 February 2006, at about 11am, the accused was visiting the family of the victim. The victim’s mother was out and her father and other family members were in a Samoan fale immediately behind their European house. The accused was alone with the victim in the European house. He removed all of the victim’s clothing and proceeded to have sexual intercourse with her. The victim cried out in pain and the accused put his hand over her mouth to silence her. The act of sexual intercourse caused the victim severe pain and bleeding. At the time of the offence the victim was 5 years and 6 months old having been born on 4 August 2000.

The victim’s mother returned home while the accused and the victim were in the European house. She called out and the accused ran out of the house. The victim’s mother found the victim naked and bleeding inside and tried to stem the flow of blood from the vagina by applying towels. The victim was in a very distressed state and was in severe pain.

The victim was then taken to the hospital at Foalalo where her perineum was stitched by a nurse. She was then taken to a doctor with a general practice clinic at Salelologa who advised that she should be taken to the Malietoa Tanumafili II Hospital at Tuasivi. The victim was then taken to Tuasivi. She was then referred to the Tupua Tamasese Meaole Hospital in Apia for a specialist gynaecological examination. The victim spent one week in the hospital.

On Tuesday, 7 February 2006, the accused was interviewed by the police at the Tuasivi police station. He admitted to having sexual intercourse with the victim.

The accused, as already mentioned, was 14 years and 6 months old at the time of this offence. He was attending school at Faiaai at the time. As a result of this offence, he was banished from his village and is now residing with an aunty at Vailele. He is no longer attending school but is employed as a groundsman. The accused’s father told the probation service that his family has presented 30 cartons of canned herrings, 10 sows and one cattle beast to their village as the accused’s penalty. The parents of the accused have also apologised to the parents of the victim. Counsel for the accused in his plea in mitigation also told the Court that the accused is very remorseful.

The accused is related to the victim. He is a first offender. It appears from the pre-sentence report that he had been a person of good character prior to the commission of this offence. When the accused was questioned by the probation service as to why he had committed this offence, his reply was that while watching TV he saw a boy and girl kissing and that aroused his feelings.

In the sentencing memorandum by counsel for the prosecution, it is there pointed out that since the commission of this offence, the victim has become socially isolated. She has become the subject of cruel taunting by other children of her village who are aware of what happened to her. So she longer socialises with other children. Parents of other children have also shied away from the victim and her mother and refuse to have the victim in their company. In other words, the people of the victim’s village are not showing any love or sympathy for the unfortunate members of their village who are down and hurt.

As a further consequence of this offence, the mother of the victim no longer trusts anyone with her children particularly as the accused is her relative. She now keeps her children under constant care. The mother of the victim has also cut the victim’s hair short in the hope that no one will give her any attention.

There are several aggravating circumstances in this case. The victim is now 6 years old but was 5 years and 6 months old at the time of this offence. She is also a relative of the accused which in Samoan custom further aggravates the gravity of this offending. As a consequence of the accused’s acts, the victim suffered severe pain and bleeding from the vaginal area. Her innocence and virginity as a woman have been violated at a very young age. She had to be taken to three different hospitals and one private medical clinic for treatment. She was finally admitted for one week at the Tupua Tamasese Meaole Hospital in Apia. She is now being taunted by other children of her village. She has become socially isolated within her own village. The victim has suffered serious physical and long lasting psychological harm.

The mitigating features are: the fact that the accused is a first offender and was a person of good character prior to the commission of this offence, his youth, the fine his family has paid to the village and the apology his parents made to the parents of the victim which was accepted, and the accused’s expression of remorse through his counsel. The accused has also been banished from his village which is a form of punishment. I will give only a limited discount for the accussed’s delayed plea of guilty.

Sentences passed in similar cases

Sentences passed in previous similar cases are a legitimate sentencing consideration to be taken into account. It reflects the notion of equal justice, that is, similar cases are treated similarly and dissimilar cases are treated differently.

In the case of Police v Vaa Tupai [2000] WSSC 38, an accused aged 16 years was sentenced by Vaai J to 3 years imprisonment for the rape of a 12 year old girl after a plea of guilty. In the recent case of Police v Vine Amitua Pama [2007] WSSC 12, a 17½ year old accused was sentenced to 4 years imprisonment, after a guilty plea, for the rape of a 14 year old girl. Perhaps, I should also refer to the case of Sape Talo v Police [1994] WSCA 21, where the Court of Appeal imposed a sentence of 4 years imprisonment on the closely analogous crime of attempted rape where the accused was found guilty after a defended hearing. In that case, a 30 year old drunken man took a little girl aged 2 years and 8 months and carried her into the bushes. He removed the girls clothing and tried to have sexual intercourse with her. Two women who were nearby heard the screaming of the little girl and rushed on to the scene. The accused ran away. When medically examined, the little girl was found to have sustained injuries to her vaginal area. A sentence of 4 years imprisonment was considered to be appropriate.

The approach to be applied in this case where the accused is a young first offender appearing for sentence on a charge of rape, is that explained in the cases cited by counsel for the prosecution in her helpful memorandum. The latest of these cases is Police v Vine Amitua Pama [2007] WSSC 12.

Not all the cases where a young first offender had been sentenced on a charge of rape over the years after a guilty plea have been reported. This may be unfortunate even though there had been only very few of such cases. From experience, the longest custodial sentence for this type of case has been four years imprisonment. Each case, of course, has to be dealt on its own particular facts. But before making a substantial increase to the level of sentencing in this type of case, the Court would need to be satisfied that such a step is justified.

Having regard to all the matters referred to above, including the aggravating and mitigating circumstances, the accused is convicted and sentenced to 4 years imprisonment.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution
Ameperosa Roma for the accused