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Police v Pasami [2011] WSSC 38 (7 March 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

VITALE PASAMI male of Vaimoso.
Defendant

Counsels: Ms T Toailoa and F E Niumata for prosecution
Mr S J Wulf for defendant

Sentence: 07 March 2011

SENTENCE

The summary of facts in this matter which the defendant through his counsel has accepted states as follows: the defendant is 22 years of age from the village of Vaimoso-tai and is a fisherman by occupation. He faces the charge of rape and the complainant in this matter is a 12 year old female. And in case an order has not been issued there will issue an order suppressing the publication of the details of the complainant including her village and place of residence.

The summary says that on Sunday 22 August last year the complainant was taken to the home of acquaintances of her father located at Vaimoso. When they arrived at Vaimoso the couple who had brought the complainant began drinking beer outside the house that they went to with the defendant. It is not clear from the summary what the relationship is between the couple and the complainant. But at some stage either during the drinking session or afterwards the defendant took the complainant to bushes at the back vicinity of the house undressed her and raped her. The summary of facts goes on to state that the defendant also performed other indecent acts on the complainant after the intercourse but those acts are not the subject of any charge and are therefore not relevant to the charge of rape. The summary does go on to say that the next day the complainants father saw the defendant kissing the complainant at the market. This caused the complainants father to become angry and he went over and beat up the defendant, an understandable reaction given the young age of the girl.

Subsequently the matter was reported to the police and this has led to the rape charge to which the defendant has pleaded guilty. I must express some dissatisfaction at the quality of the summary of facts in this case. Given that this is a serious charge and is a charge punishable by life in prison. The summary of facts has obvious gaps in its narrative and lacks detail in crucial areas and the victim impact report should not be taken as a document that supplements a summary of facts. The purpose of that report is not to be a summary of the facts of this matter. It is the victim impact report that merely focuses on the impact the offending has had on the victim.

One thing is clear about this case is a rape by a man who is 10 years older than the 12 year old complainant. And there is no question that given the seriousness of the offending an imprisonment penalty is called for. The young age of the girl involved is an aggravating factor as is the age difference between the parties of 10 years. A difference that was no doubt exploited by the defendant who was under the influence of alcohol. In Police v Talataina [2009] WSSC 114 the rape of an 11 year old by an older male neigbour resulted in a penalty of 10 years in prison. In Police v Taula [2008] WSSC 49 a rape of an 11 year old coupled with other aggravating factors which are not presented in the present prosecution summary of facts resulted in a penalty of 14 years in prison.

Considering all the factors in this matter, 16 years is an appropriate start point for sentencing purposes. I will give you the usual deduction for your guilty plea because that has saved the complainant having to testify and the courts time and resources. For your guilty plea I deduct 5 years leaving a balance of 11 years. You have a previous conviction but I agree with your lawyer that it is for an unrelated offence and therefore for the purpose of this offence you should be treated as a first offender. For your first offender status I deduct 12 months or the period of 1 year, that leaves a balance of 10 years. There are no other factors that require adjustment to this sentence you will be convicted for this rape and sentenced to 10 years in prison. Your remand in custody time awaiting sentence is to be deducted from that period.

............................
JUSTICE NELSON