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Police v Elia [2014] WSSC 23 (10 July 2014)

SUPREME COURT OF SAMOA

Police v Elia [2014] WSSC 23

Case name: Police v Tautiaga Elia

Citation: [2014] WSSC 23

Decision date: 10 July 2014

Parties: POLICE (prosecution) and TAUTIAGA ELIA male of Neiafu

Hearing date(s): 29-30 April 2014

File number(s): S36/13

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:

Representation:
L Su’a-Mailo for prosecution
T Leavai for accused

Catchwords:
rape, maximum penalty , indecent assault, mitigating and aggravating features, sentence,

Words and phrases:

Legislation cited:
Crimes Ordinance 1961 (s.47) and (s54)

Cases cited:
Key v Police [2013] WSSC 3

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S36/13

BETWEEN

P O L I C E

Prosecution

A N D

TAUTIAGA ELIA male of Neiafu, Savaii.

Counsel
L Su’a-Mailo for prosecution
T Leavai for accused

Sentence: 10 July 2014

S E N T E N C E

The charges

1. The accused appears for sentence on one count of rape, contrary to s.47 of the Crimes Ordinance 1961, which carries a maximum penalty of life imprisonment and three counts of indecent assault, contrary to s.54 of the Ordinance, each of which carries a maximum penalty of 5 years imprisonment. One of the three counts of indecent assault relates to the acts committed by the accused during the alleged rape. So it is in effect an alternative count to the count of rape. The other two counts of indecent assault relate to two different and separate incidents. Each of those two counts is therefore an independent count.
2. The accused pleaded not guilty to all four counts. After a trial before assessors the accused was found guilty of all counts.
3. I must point out that a not guilty plea is not an aggravating feature. The accused has a legal right to plead not guilty. The exercise by the accused of that legal right is not an aggravating feature. What it means is that by pleading not guilty the accused will not have the benefit of a guilty plea for sentencing purposes.

The offending

4. At the time of the offending, the victim was 19 years old and the accused 40 years old. They are neighbours and are from the same village.
5. In July 2012, the victim’s mother attended the conference of the Methodist Church while her father and brother attended a funeral. Only the victim was left at home. She picked up the rubbish in front of her family’s house. After that, she went into her family’s house to have her tea (or ti), which in the Samoan context would be breakfast.. This was about 10:00am in the morning. She opened the door to the room where her family’s furnitures were kept. She was shocked when the accused, who is a friend of her older brother and often comes to her family’s house, pulled her into the room and closed the door.
6. The accused then placed the victim on a “pusa” (presumably a clothes box), closed her mouth with one of his hands, kissed her lips (“faakisi”), and sucked her breasts. She struggled but the accused was too strong for her. She tried to scream but the accused closed her mouth. He also slapped her mouth twice. The accused then removed the victim’s clothes, and inserted his fingers inside her private part before he had sexual intercourse with her without her consent.
7. On 28 September 2012 in the afternoon, the victim went to the stone enclosure behind her family’s house to collect firewood to prepare her family’s “saka”. As she was cutting firewood, she was taken by surprise when the accused approached her from behind, held her, and kissed her (“faakisi”). He tried to have sexual intercourse with her by sucking her breasts and trying to remove her clothes but she resisted. The accused then threatened the victim that if she told on him to her family then watch out for what he would do to her.
8. Then on 19 October 2012, the father of the victim sent the victim to plant taro stems (“tiapula”) at the rear part of the stone enclosure behind their house. While she was doing that, the accused suddenly appeared, held her and kissed her (“faakisi”). He also touched her breasts, her private part, and other parts of her body. He did not stop until a woman of the village suddenly appeared and found what he was doing to the victim.

The victim impact report

9. According to the victim impact report, because of what had happened to the victim, she has been shunned by the people of her village. She is saddened and ashamed by what had happened to her that she has avoided village gatherings. She is also no longer close to her brother who is the accused’s friend. The victim also says “Ua pau lau Ekalesia” which means she can no longer receive Holy Communion or take full part in certain rituals and activities of her church.
10. The victim also says this was the first time she had sexual intercourse with a male and she finds her “loss of dignity” as a woman deeply unsettling. Her parents have also suffered because the reputation of their family has been tarnished.

The accused

11. The accused is married with four children. He is presently without formal employment but works on his own plantation. He looks after his elderly sick parents particularly his mother who has been bedridden for some time.
12. The accused is also a first offender. He is the leader of the “aumaga” of his village and the president of his church Sunday school. The testimonials from the accused’s uncle, the pulenuu of his village, and the pastor of his church all show that the accused had been a person of good character prior to the commission of these offences.
13. The accused and his wife had also apologised to the victim’s parents. The apology was accepted and this matter has been reconciled. The victim has also forgiven the accused but she still wants a custodial sentence to be imposed on him.
14. The accused has also been penalised by his village council. He provided two cattle beasts and one large pig with a total value of $2,500 for his penalty. This was confirmed by the “tuua” (chief orator) of his village who appeared before the Court.

The aggravating features

15. There are several aggravating features of this offending. With regard to the rape, there was clearly pre-mediation on the part of the accused. He must have known that it was only the victim at her family house as his own family’s house is close by. So he went and hid inside the house of the victim’s family waiting for the victim when she came into the house. Secondly, this rape involved home invasion. Thirdly, this was the first time the victim had had sexual intercourse. So she was a virgin at the time of this offending. Fourthly, violence was involved though to a moderate degree. The accused slapped the victim twice as she tried to scream. He also threatened to harm the victim if she told anyone about what he had done to her. Fifthly, is the age difference of 21 years between the accused and the victim. Sixthly, this offending involved an element of breach of trust because the accused is a close friend of the victim’s brother and he often went and spent time at the house of the victim’s family. So there was close familiarity between the accused and the family of the victim. And, seventhly, is the impact of the offending on the victim.

The mitigating features

16. With regard to mitigating features, there is no mitigating feature in relation to the offending but there are mitigating features personal to the accused. These are: (a) his previous good character, (b) the apology by the accused and his wife to the parents of the victim which was accepted, (c) the penalty imposed by the village council on the accused, and (d) remorse on the part of the accused.
17. In relation to the separate offences of indecent assault committed in September and October 2012, the aggravating features are: (a) the age differences between the accused and the victim, (b) breach of trust as it is in relation the rape count, and (c) the impact of the offending on the victim.
18. With regard to mitigating features, there is no mitigating in relation to the offending. But the mitigating features personal to the accused which are returned to the count of rape are also relevant to the two separate counts of indecent assault.

Discussion

19. In the case of Key v Police [2013] WSSC 3, the Court of Appeal set out four bands for sentencing in rape cases. I will place the rape in this case within band 2 where the range of starting points for sentencing is from 9 to 15 years. This is because this rape case involved moderate violence and pre-meditation. I will take 10 years as the starting point for sentencing. I will deduct 9 months for the accused’s previous good character. That leaves 9 years and 3 months. I will deduct 3 months for the reconciliation and remorse on the part of the accused. That leaves 9 years. I will further deduct one year for the penalty imposed by the village council. That leaves 8 years.
20. For the indecent assault offendings, I will adopt an overall approach and take a starting point of 2 years for each count of indecent assault as suggested by counsel for the prosecution in her submissions. For the mitigating features personal to the accused, I will deduct one year. That leaves one year for each count of indecent assault.

The result

21. For the count of rape, the accused is sentenced to 8 years imprisonment.
22. For the count of indecent assault which is an alternative to count of rape, there is no need to pass sentence on that count.
23. For each of the other two separate counts of indecent assault the accused is sentenced to one year imprisonment on each count.
24. The sentence passed on the rape count and for each of the two indecent assault counts are made cumulative. The accused will therefore serve a total sentence of 10 years imprisonment. Any time that the accused has already spent in custody pending the outcome of this matter is to be deducted from the total sentence of 10 years imprisonment.
    

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CHIEF JUSTICE

Solicitor
Attorney-General’s Office, Apia, for prosecution
Leavai Law Firm, for defendant