Supreme Court of Samoa
Police v Moatoga [2012] WSSC 61

Case name: Police v Moatoga
Citation: [2012] WSSC 61
Decision date: 23 April 2012
Parties: 
POLICE v TOLUTASI SILA MOATOGA  male of Sama’i Falelatai and Togafu’afu’a
Hearing date(s): 
File number(s): 
Jurisdiction: Criminal
Place of delivery: Mulinuu
Judge(s): Nelson J
On appeal from:
Order:
Representation: 
Ms P Valoia for prosecution
Defendant unrepresented
Catchwords: 
Words and phrases:
Legislation cited:
Cases cited:
Police v Filipo [2011] WSSC 127
Police v Sione [2011] WSSC 128
R v AM [2010] NZCA 114
Police v Luamanuvae [2012] SWWC 4
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:  THE POLICE
Informant

AND:	TOLUTASI SILA MOATOGA  male of Sama’i Falelatai and Togafu’afu’a.

Defendant

Counsel:  Ms P Valoia for prosecution
Defendant unrepresented

Sentence:  23 April 2012

SENTENCE

The defendant in this case is a 26 year old taxi driver for sentence on a charge that at Vaivase-uta in  February this year he did rape the complainant a 16 year old female. The rape occurred in the defendants taxi late at night when the complainant after a night out drinking with some friends caught the taxi to go home.  Initially the defendant disputed how this offending occurred, but after hearing the complainant and a passing taxi driver who had come to her aid post-rape the court was satisfied that the complainant did not freely or voluntarily consent to having intercourse with the defendant.  The complainants conditions was such that it is questionable she was able to freely or voluntarily consent to anything.  Suppression order has already been issued in respect of the complainants details and that remains in full force.  
The police summary of facts states that the complainant spent the evening drinking with some friends.  Around mid-night she walked to a nearby taxi stand and asked the defendant taxi driver to take her home.  She was by that stage quite intoxicated and she got into the back seat of the taxi and promptly passed out.  The taxi began its journey from Faatoia to Vaivase-uta.  The defendant said that at one point in the journey they pulled over to allow the complainant to make a bathroom stop. And that afterwards the complainant fell back into the taxi semi dressed and lay on the back seat of the car.  He attempted to seat her properly in the back seat of the vehicle and as he was doing so became aroused at her semi naked state.  He also maintains that the complainant hugged him.
The complainant said no such thing happened and that she was awoken by the defendant touching her and having intercourse with her.  She said she was incapable of resisting him due to her drunken condition.  Afterwards she was able to get away and hide from the searching defendant. She sought the assistance of a passing taxi driver who drove her to the defendants taxi stand where she identified the defendant.  From there to the police station where she laid a complaint.  
She said in her victim impact report that she is now fearful of catching taxis and could not believe that anyone as innocent looking as the defendant could do something like this to her.  It is clear from the facts that the defendant took advantage of the complainants condition to satisfy his urge.  The defendant is quite correct, he indulged himself in a moment of weakness.  
There have been a number of recent decision of this court concerning sentencing in rape cases.  Here I refer to the judgments of Justice Slicer in Police v Filipo [2011] WSSC 127 and Police v Sione [2011] WSSC 128. Where the learned judge adopted the New Zealand approach of band sentencing for rape cases based on the New Zealand model laid down by their Court of Appeal in R v AM [2010] NZCA 114. Where it classified rape into four sentencing bands: band one 6 – 8 years, band two 7 – 13 years, band three 12 – 18 years and band four 16 – 20 years.  A start point appropriately reflecting the seriousness of the offending was fixed in accordance with the bands and then adjusted up or down to account for the circumstances of the offender and such things as a guilty plea. Culpability factors and examples of how the band approach was to work were helpfully set out by the Court of Appeal.  
Subject to the rider noted in paragraph 35 of the New Zealand Court of Appeal judgment that  - 
“Given the wide variety of circumstances that may be encompassed by offending  in this area, it is not possible to provide an exhaustive list of all the factors that may contribute to the culpability of an offender…it is trite but important to emphasise that what is required is an evaluation of all the circumstances.  Listing relevant factors and setting out bands in the way we have done does not remove the need for judgment.  A mechanistic approach is not appropriate.”

Further that - 
 “The proposed bands set out ranges of starting points, not final sentences.  In the usual way, that starting point will be adjusted up or down to reflect circumstances personal to the offender.  It is at this stage that mitigating factors such as youth, mental disability, and earlier good character will be taken into account.  It is important that judges do not diminish this aspect of sentencing.  Sentences should reflect personal factors.  The point of the guidelines is not to impose a straitjacket on sentencing judges – quite the reverse.”

Applying those sentencing bands the court went on in Police v Filipo to sentence the defendant to 18 years in prison.  Unlike the present case that case involved repeated acts of rape on a 15 year old who was a member of the defendants family. The rapes there were also accompanied by threats of death and physical violence.  Filipo contains a very helpful traverse of the history and authorities leading up to R v AM.  The case of Police v Sione where the sentence was 15 years for the rape of a 6 year old child also contains a useful review of relevant cases.  
The R v AM approach was followed by Chief Justice Sapolu in Police v Luamanuvae [2012] WSSC 4 where the defendant received a sentence of 7 years 3 months for the rape of a 12 year old on her way home from evening Bible class.  
I concur with my brother judges that band approach sentencing promotes consistency of sentences and better transparency.  Further that it is in line with the sentencing approach now common place in respect of other criminal offences.  But one must not lose sight of the fact that what is required is an evaluative exercise of judgment.  As has been stated many times, sentencing is not a mathematical calculation, it be more of  an art than a science.  
Whilst I agree as aforesaid with my brothers I have some difficulty with the band approach in so far as the offence of rape is concerned.  The band approach in New Zealand was developed in a jurisdiction where the maximum for rape is a specific term namely 20 years imprisonment.  In this jurisdiction the maximum is not a set term but is life.  How then is a maximum term under the band system to be defined where the law provides that the maximum term is life in prison?  Does “life” mean a term of 20 years, 25 years, 30 years or more?  If one were to take a notional maximum as representing a term of 25 years, the bands set out in R v AM would on a percentile basis need to be recalculated and would start at 7.5 years in order to end up with a 25 year maximum.  An alternate methodology would be to create a “first” or a “fifth” and final band culminating in life in prison.  The band approach would in my respectful view necessitate the court engaging in this sort of exercise.  
A further difficulty I have is that there is room for the argument that Parliament in imposing a maximum of life imprisonment rather than a set term did not intend that a band sentencing type regime should operate.  And that it prefers to leave the matter to the good sense wisdom and experience of its judges.  The argument here would be that a different sentencing regime is a matter best left for Parliament to determine.  Parliamentary intervention would also deal with or by implication avoid the problem posed by section 10 of the Prisons Parole Board Act 1977 as highlighted by Slicer, J in Police v Filipo. Which could lead to a defendant sentenced to life imprisonment for the most serious of rapes becoming eligible for parole before an offender sentenced to a set term for a “lesser” kind or rape.  The caveat expressed by Slicer, J in Filipo is well taken.  
For this matter I do not propose to follow the R v AM band approach.  But as will be seen from the final outcome, the sentence would probably not be too much different.  This was an opportunistic offending, it was not pre-planned.  On the evidence I have seen the defendant saw his opportunity and took it.  The complainant was clearly inebriated and not in any position to resist a man 10 years older.  The defendant gave into temptation and as he himself acknowledged in his plea to the court did so in a moment of weakness for which he now prays leniency as understandably does his family.  There is no evidence that any unusual or extra-ordinary amount of violence was involved in subduing the complainant.  She was able post-rape to run away and hide from the defendant and return to the defendants taxi stand and positively identify her assailant.  There is no evidence there has been any long term impact on the complainant who appeared in her testimony to be well balanced and quite able to recount her ordeal.  Not with a great deal of clarity of detail but that no doubt was due to her drunken state at the time.  This was a one-off act of sexual violation but what aggravates it is that it was committed on a vulnerable young girl late at night in a deserted area.  And committed on a young girl who had entrusted her safety and well-being to the defendant as the driver of a taxi she had engaged to take her safely home.  
An appropriate start point considering all the circumstances of this matter would be a period of 10 years in prison.  Which is a period at the upper end of a revised band one scale using 25 years as the maximum penalty.  And takes into account the special vulnerability of this victim who was 16 years old alone and drunk in the back of your cab.  
From that period Tolutasi you are entitled to certain deductions by law which I will now make.  Firstly for your guilty plea.  Normally I would allow a one-third of sentence deduction for a guilty plea but in  your case you  disputed the police summary of facts which necessitated the calling of the complainant and a corroborative witness.  Because of your denial I cannot give you full credit for your plea but I will allow a deduction of 12 months from your sentence in recognition of the fact that you have pleaded guilty and saved some time and resources of the court.  That leaves a balance of 9 years.  For the fact that you are a first offender with a clean record and a good background I make a further deduction of 12 months leaving a balance of 8 years.  According to the probation office report your family has given effect to an ifoga on your behalf to the family of the young girl.  The report also relays that it was not fully accepted by her parents.  I note that it was done in your absence as you were being held in custody at the time.  I will give you some credit for that customary reconciliation process by deducting 6 months from the balance of your term.  That leaves 7½ years.  There are no other deductions Tolutasi that you qualify for according to law.  
On the charge of rape you will accordingly be convicted and sentenced to 7½ years in prison.  Your remand in custody time is to be deducted from that sentence.  

JUSTICE NELSON