IN THE SUPREME COURT OF SAMOA
Police v Pule [2015] WSSC 76

Case name: 	Police v Pule	
		
Citation: 	[2015] WSSC 76	
		
Decision date: 	31 July 2015	
		
Parties: 	Police (prosecution)
Punivai Pule male of Sapulu Fogatuli, Fasitoo-tai, Vaitele-fou and Salelologa (defendant)	
		
Hearing date(s): 	-		
		
File number(s): 	S1022/14, S1019/14 and S1016/14	
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court, Mulinuu	
		
Judge(s): 	Justice Vaai	
		
On appeal from:		
		
Order:	Sentenced to 13 years imprisonment for each count of rape which are to be served concurrently and less any time he spent in custody.

For the offence of having sexual intercourse with a related girl living with him as a member of his family, he is sentenced to 3 years imprisonment, to be served concurrently with the rape sentences.

Representation: 	L Tavita for prosecution
M Peteru for defendant 	
		
Catchwords: 	Rape – Sexual intercourse with related girl – death threat – guilty plea – concurrent sentenced	
		
Words and phrases:	Lower end of band 3	
		
Legislation cited:		
		
Cases cited:	Key v Police	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:	

POLICE
Prosecution

AND:	
PUNIVAI PULE male of Sapulu Fogatuli, Fasito’o-tai, Vaitele-fou and Salelologa
Defendant

Counsel:	L Tavita for prosecution
M Peteru for defendant

Sentence:	31 July 2015

S  E  N  T  E  N  C  E

1. 	The accused aged 54 pleaded guilty to two counts of rape.  He also pleaded guilty to one count of having sexual intercourse with a related girl under 21 years old who was living with him as a member of his family.  All three offences were committed in February, March and September 2011.  
2. 	The police summary of facts is not disputed.  The first count of rape in February 2011 involved the accused’s daughter in law who was 19 years age and 8 months pregnant at the time.  Rape was committed when the victim’s husband left for work early in the morning while the victim was still asleep.  The accused with whom the victim and husband were living with went over and woke up the victim.  He was sitting beside her with a knife in his hand when she woke up.  Without a word the accused proceeded to undress the victim.  He then tied her hands to the bed.  He also tied a piece of cloth over her mouth.  He then proceeded to kiss her breasts continuing down to her vaginal area.  After performing oral sex he then raped the victim.
3. 	The second incident of rape was in March 2011.  The victim this time was a 16 year old girl, a niece of the accused’s partner who was living with the accused and his partner as a member of his family.  At the time of the offending the accused’s partner was overseas, leaving the victim under the care of the accused.  On the night the offence was committed, the accused went home before midnight and woke up the victim to prepare his food, which she did and took it to his room.  He then told her to massage his feet which she did.  He then asked her to have sex which shocked her and she accordingly responded that she was shocked as she was supposed to be his daughter.  He then told the victim to go to sleep but as she was about to leave he grabbed her and sat her on his lap.  She was then given a death threat if she made a noise.  He then proceeded to undress her, laid her down on the bed, sucked her breasts and raped her.  She cried quietly due to the death threat.
4. 	The third count against the accused concerned the same young girl.  She was asleep when the accused returned home between 1 – 2am, woke her and told her to massage his feet.  As she was massaging the accused commenced to undress her, laid her on the bed and had intercourse with her. 
Submissions by counsel for accused
5. 	It is conceded that imprisonment sentence is inevitable.  In seeking mercy it was submitted that the accused is deeply remorseful and the court was invited to consider as mitigation factors his previous good character and first offender status at the age of 54; his guilty pleas has saved the expense of a trial, and has also spared the victims from the traumatic experience of giving evidence and reliving the incidents.  It was also contended that the guilty plea has spared the victims from further anguish and should restore in them a sense of stability in the knowledge that the accused has admitted his wrongdoing.  
Submissions by the Prosecution
6. 	For the two incidents of rape the prosecution sought imprisonment terms to commence at 18 – 19 years given the aggravating features of the offendings and to comply with the guidelines set out in Key v Police to provide consistent and appropriate starting points for cases of sexual violation depending on their circumstances.  It was submitted that the violence involved, breach of trust, vulnerability of the two victims and the planning of the offending warrants the adoption of band 3 which is applicable where the aggravating features are at a relatively serious level and warrants a commencement period of 18 – 19 years. 
7. 	Counsel for the prosecution has provided a table of sentences imposed in cases of rape which does provide a useful guidance as to the range of sentences which the Court has imposed in previous cases of similar nature since Key v Police.  The sentence to be imposed for each case, however must be determined by its own facts.
Discussion
8. 	Average sentence lengths for rape have been increasing.  But so too, as the prosecution counsel correctly submitted, is the rise in sexual offending.  This disturbing prevalence in sexual abuse must be met with stern measures to reflect society’s revulsion and denunciation.  
9. 	Although violence is inherent and associated in any act of sexual violation, the overall level of violence employed by the accused in the two incidents of rapes were serious and ought to be considered as an aggravating feature in determining the culpability of the accused.  In the case of the daughter in law the accused deliberately armed himself with a knife, tied her hands to the bed, and tied a piece of cloth over her mouth.  In the Victim’s Impact Report she stated that during the forceful sexual intercourse she felt pain in her stomach and she felt her baby moving so much that it was very painful.  Her state of pregnancy did not in any way deter the accused, and in committing the offence, the accused put at risk the safety of the victim and her child.  In the case of the 16 year old, she was threatened, he told the victim that the moment she makes a noise he would kill her.  Threat of violence was designed not only to intimidate the young girl it was also employed to prevent her from reporting the incident.
10. 	There was also some element of planning and premeditation.  Soon after his son left for work early in the morning the accused armed himself with a knife, walked to where his son’s wife was asleep and proceeded to tie her to the bed before raping her. In the case of the 16 year old girl, he went home late at night, got the girl to bring his food into his room, made her to massage his feet and when she refused to have sex, he raped her.  Both rapes were committed when the accused was alone in the house with each victim.
11. 	Physically both victims were no match for the accused.  He was 54; the victims were 16 and 19 and both were caught by surprise.  Given their ages, condition and physiques they were easy prey for the accused.
12. 	The 16 year old niece of the accused’s partner was living with the accused as a member of his family.  The accused was trusted by his partner to care for the victim while she travelled overseas.  The victim obviously looked to the accused as a fatherly figure, her provider and protector.  Her natural love for the accused as her father is reflected in the summary of facts.  She prepared food late at night and after midnight when the accused came home. She trusted him.  So when the daughter is sexually abused and raped by the very person she looked upon as her father her initial feelings must be one of confusion as it happened in this case.  This confusion may transform into fear and other psychological effects.  In the Victims Impact Report she stated she felt she was going out of her mind as she was too scared to tell anyone; she felt helpless; she felt like committing suicide as she cannot get the ordeals out of her mind.
13. 	The daughter in law also trusted the accused as her father in law, being the father of her husband.  As a result of the accused’s offending, she the victim has not only lost the accused as father in law, she has also lost her husband through a separation.  However, this morning prior to sentencing, the victim informed the court that she is back with her husband.
14. 	This accused through his offending has abused the trust of many people who had faith in him as a husband, father, father in law and a matai and leader.
15. 	In mitigation, this accused has had an impeccable record and is appearing for the first time in court.  He has also pleaded guilty.  But that guilty plea was delayed by about 12 months.  He initially entered not guilty pleas on the 31st March 2014. It was not until the 3rd March 2015 after several adjournments that he changed plea.  That change of plea and its effect on the daughter in law is reflected in her Victims Impact Report.  The report says:
“That when the defendant finally pleaded this morning at Court she felt relief and happy.  This was because ever since this matter was pending in Court, it has been a heavy burden in her heart knowing that the defendant has denied the charges, and yet she was suffering the consequences of his actions.” 
16. 	Although I agree with Counsel for the prosecution that both offendings of rape falls within band 3, I consider that each count of rape falls in the lower end of band 3.  I consider 15 years as the appropriate starting point for each count of rape.  For his delayed guilty plea I deduct 2 years.  He is sentenced to 13 years imprisonment for each count of rape which are to be served concurrently and less any time he spent in custody.
17. 	For the offence of having sexual intercourse with a related girl living with him as a member of his family, he is sentenced to 3 years imprisonment, to be served concurrently with the rape sentences.

JUSTICE VAAI