IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

MALAKI NANAI AMATE,
male of Vailele-uta and Matautu Falelatai.
Accused

Counsels:	Ms T. Faumuina for the prosecution
Ms R. Papalii for the defendant

Sentence:	20 May 2009

SENTENCE

Defendant appears for sentence on a charge that at Vailele-uta between 16 and 18 May 2008, he did attempt to rape the complainant. If an order has not already been made one is to issue suppressing publication of the complainants name, village and any other details that may identify her.

Summary of facts shows that on the night of Saturday 17 May 2008 the defendant was playing pool and drinking beer with friends at Vailele. Towards the end of the night he left and walked home passing the complainants house which is one house away from his. He entered the complainants house through one of the doors which appears unwisely to have been left unlocked and walked around inside the house. He went to the bedroom and found the complainant sleeping on the bed. He slowly pulled the sheet away from her and discovered she was naked. He became sexually aroused and took off his pants and got on to the bed, crawled to where she was sleeping and knelt by her and began to remove his underwear. At this point the complainant awoke, sat up and began screaming. He put his hands on her and pushed her back down onto the bed, strangled her and continued to push her down onto the bed. The complainant continued with her struggles and fighting off the defendant so he punched her on the side of her face jumped off the bed and ran away. He was apprehended the next day by the police who are well acquainted with the defendant because he was at the time of the offending on parole.

The defendant has an extensive previous conviction record having spent much of his life in prison but had been granted parole in 2005. That parole not surprisingly has now been revoked and the defendant is currently in prison serving out the remainder of his sentence. 

The charge in this case is serious and the aggravating factors are correctly noted in the prosecution written submission. This was a home invasion offence because it was committed in the complainants home while the complainant was asleep in her bed. Violence was involved in the offending and it has had consequences for the complainant who in the victim impact report referred to "the personal professional and financial turmoil" that the offending has caused her and her partner. The report relates that the two of them were renting the house at Vailele intending to marry and set up business in this country. This matter caused her partner to loose his employment and due to financial reasons and the associated stress and anxiety suffered by them they have re-evaluated their situation and have now moved to New Zealand to start up again and to live. Her memories of her home country are forever scarred by her experience.

There is no question the seriousness of the offence is reflected by its maximum penalty of 10 years imprisonment and the offending is aggravated by the defendants extensive offending history. As noted by Chief Justice Sapolu in Police v Leasuasu [2007] WSSC 56: 

"Sentencing in criminal cases has several purposes. The primary purpose is the protection of society. Other purposes are (a) the deterrence of the particular offender from re-offending, (b) the deterrence of others who might be tempted to commit the same or similar offences (c) retribution, and (d) rehabilitation. The difficulty that often arises is how to achieve a suitable balance between these various purposes in a particular case. In this case, I give hardly any weight at all to rehabilitation given the past record of the accused. As I have earlier said the accused’s past record shows that he is a significant and on-going risk to other members of the community and there is also a high risk of him re-offending. This is sad given the brief family background of the accused placed before the Court, but the Court has to bear in mind the protection of the community. A deterrent sentence is called for." 

Thus it can be seen the defendants previous conviction record must be taken into account when deciding an appropriate penalty because one of the primary purposes of sentencing is to protect society where the court is of the opinion that the possibility of re-offending by an offender is high. The real question as is often the case is how long a sentence must be imposed. In Leasuasu itself the defendant had a long list of previous convictions for burglary, theft and narcotics offending and just like this defendant committed the offence while out on week-end parole.

The court in that case imposed a sentence of 5 years imprisonment after allowing for the factors in the defendants favour. Similar factors exist in this case. The case of Police v Leilua [2008] WSSC 47 was also cited by the prosecution where a penalty of 6 years and 2 months was imposed but the degree of violence involved in that case was significantly higher. I have also taken into account and bear in mind defence counsels thoughtful submission on behalf of the defendant. She has indeed said all that can be said for the defendant but considerations of rehabilitation in this case must take secondary importance to the protection of the public. Considering all factors I am of the view the Leasuasu penalty is appropriate to this case. The defendant will be convicted and sentenced to 5 years imprisonment cumulative to the terms he is currently serving.

JUSTICE NELSON