IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

PASEFIKA ULA male of Sinamoga and Safotu, Savaii.
Accused

Counsel: L Sua-Mailo for prosecution
T Atoa for accused 

Sentence: 27 February 2009

SENTENCE BY SAPOLU CJ

The Charges

1.	The accused appears for sentence on one count of rape and one count of incest. The accused had originally pleaded not guilty to both counts and his case was set down for trial. On the day of trial, the accused’s plea of not guilty was vacated and substituted with a guilty plea after much discussion with and advice by his counsel.

The Offending

2.	As it appears from the summary of facts, one night in 2002 the accused, who is the biological father of the victim, approached the victim whilst she was asleep and removed her clothes. The victim refused what the accused was doing but he continued to remove her clothes. The accused then forced his penis into the victim’s vagina and proceeded to have sexual intercourse with her without her consent. The victim cried and complained of the pain but the accused continued to have sexual intercourse with her until he was satisfied. The victim’s mother was not at home at the time.

3.	Then again on a subsequent night in 2006 when the victim’s mother and siblings were away from home, the accused approached the victim again, licked and sucked her breasts and vagina before proceeding to have sexual intercourse with her.

The Accused

4.	As already mentioned the accused is the biological father of the victim. At the time of the present offence he was 40 years of age.

5.	As it appears from the pre-sentence report, the accused has a wife and four children one of whom is the victim. He has been the sole provider for his family.

6.	The accused has a previous conviction in 1994 for a traffic offence. I accept the accused’s counsel submission that the accused be treated as a first offender for the purposes of the present offending.

The Victim

7.	The victim was 13 years old at the time the present offences were committed. She must have suffered great emotional stress and trauma when these offences were committed on her. She certainly suffered much pain the first time the accused had sexual intercourse with her because she cried and complained of the pain. The thought of having been raped by her own father is also likely to remain with her for the rest of her life.

Aggravating Features

8.	There are several aggravating features in this case. The first is that the victim is a biological daughter of the accused. Secondly, the breach of trust these offences involve. Thirdly, the vulnerability of the victim at the times these offences were committed. Fourthly, the age difference of 27 years between the accused and the victim. And fifthly, the psychological impact these offences are likely to have on the victim for the rest of her life.

Mitigating Features

9.	The mitigating features of this case are the accused’s plea of guilty to the charges though a delayed one, and the fact that the accused is a first offender for present purposes.

10.	However, the accused only vacated his not guilty plea and pleaded guilty to the charges on the morning of the trial. This affects the level of the discount that I will grant to the accused. See the discussion on a plea of guilty as a mitigating factor in sexual cases in Police V.X [2007] WSSC 53. I also note from the submissions by counsel for the accused that the accused vacated his not guilty plea after much discussion and advice. The pre-sentence report also shows that the accused still maintains his innocence after he pleaded guilty to the charges.

The Decision

11.	In passing sentence, I will have regard only to the offences to which the accused pleaded guilty. I will not have regard to the charges which have been withdrawn by the prosecution. Those charges are no longer before the Court.

12.	Taking into account the aggravating and mitigating features of the offending as well as its totality, I will take 12 years as the starting point for sentence. I will deduct a 15% discount for the delayed guilty plea. That leaves 10 years and 3 months. I will deduct another 3 months for the fact that the accused is being treated as a first offender. That leaves 10 years.

13.	The accused is sentenced to 10 years imprisonment. The time that the accused has already spent in custody is to be deducted from that sentence.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia, for prosecution
Tamati & Atoa Law Firm