THE SUPREME COURT OF SAMOA 
Police v Mafuie [2016] WSSC 170

Case name: 	Police v Mafuie	
		
Citation: 	[2016] WSSC 170	
		
Decision date: 		
		
Parties: 	POLICE (Prosecution) v FAAFETAI MAFUIE SAILI ESEKIA male of Tafitoala and Vaitele Uta.
(Accused)

Hearing date(s): 	29 August 2016	
		
File number(s): 		
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	The Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Tafaoimalo Tuala Warren	
		
On appeal from:		
		
Order:	•	For the lead offence of rape, the accused is convicted and sentenced to 8 years and 8 months imprisonment. 
•	On the charge of assault with intent to commit sexual violation, the accused is convicted and sentenced to 4 years imprisonment.
•	On the charge of unlawful sexual connection, the accused is convicted and sentenced to 4 years imprisonment.
•	All sentences to be concurrent.
•	Finally in terms of orders, there will be an order permanently suppressing or prohibiting the publication of the name of the victim and any details that might identify her. The suppression order does not relate to the defendant. 
1.		
		
Representation: 	O. Tagaloa for Prosecution
Accused in Person

Catchwords: 	Rape Assault with intent to commit sexual violation Sexual violation by having unlawful sexual connection between his mouth and the genitalia of the victim	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013 section s.49(1)(a) and 52(1), section 53(2) 49(1)(b), 50 (b) and 52(2).

		
Cases cited:	R v Hamilton-Wallace (CA 49/79, 14 August 1979, Woodhouse, Richardson and Somers JJ) - R v Peachey (CA 92/01, 17 July 2001, Gault, Panckhurst and Potter JJ) - R v B (an accused) [1986] 2 NZLR 751 (CA) (Cooke, McMullin and Somers JJ)  - R v AM (CA 27/2009, CA 32/2009) Key v Police [2013] WSCA(28 June 2013)	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

FAAFETAI MAFUIE SAILI ESEKIA male of Tafitoala and Vaitele Uta.
Accused

Counsel:
O. Tagaloa for Prosecution
Accused in Person

Sentence: 29 August 2016

S E N T E N C E
THE NAME OF THE VICTIM, HER FAMILY, SCHOOL AND VILLAGE ARE SUPPRESSED.
The charge
1.	The accused appears for sentence on three charges;
a)	 Rape pursuant to ss.49(1)(a) & 52(1) of the Crimes Act 2013, which carries a maximum penalty of life imprisonment;
b)	Assault with intent to commit sexual violation pursuant to S53(2) Crimes Act 2013 which carries a maximum penalty of 14 years imprisonment; and
c)	Sexual violation by having unlawful sexual connection between his mouth and the genitalia of the victim. This carries a maximum penalty of 14 years imprisonment pursuant to sections 49(1)(b), 50 (b) and 52(2).
2.	He pleaded guilty to the charges (b) and (c)  on 11 July  2016 and to the rape charge on 3 August 2016.  
The offending 
3.	The Prosecution summary of facts admitted by the accused says that 14 June 2016 at around 10 pm, the victim’s father returned home after fishing and instructed the victim to take their catch to be stored inside the fridge belonging to the family of the accused. The victim and the accused are neighbours. The victim and her younger brother then proceeded to the house of the accused. However on the way to the house of the accused, the victim’s younger brother returned home and the victim continued on her own.
4.	When the victim arrived at the house of the accused, she could not wake the father of the accused. The accused came along and took the catch to be stored in their fridge. She then returned home.
5.	On her way home, the accused followed her. He came up from behind the victim and covered her face tightly with a towel. He grabbed her hand and pulled her into a bushy area. The victim tried to scream but the accused squeezed the towel tightly onto her face. Once in the bushy area, the accused laid the victim down, suckled her breasts and performed oral sex on her. He then inserted his penis into her vagina twice. The victim felt pain at that time to her genitalia.
6.	The victim heard her father calling her name, so she screamed. The accused closed her mouth. The victim managed to pull the towel away and screamed. The accused immediately fled. The victim went home and told her family what had happened to her. The matter was then reported to the Police.
The accused
7	As shown in the pre-sentence report, the accused is 21 years old, single and lives at Vaitele Uta as a result of his bail conditions.  He is the youngest of seven children and prior to this offending lived with his parents. 
8	He left school after Year 10 and was employed as a mechanic for a year. In 2016, he commenced work on a fishing boat but that was terminated as a result of his offending. However, he is currently working at Sinalei Resort.
9	His older brother told Probation that he supports the accused and he is a reliable member of their family.
10	According to the victim’s mother, there has been no reconciliation. Probation points to this as indicating his lack of remorse for what he had done.
11	He told the Court today that he was intoxicated at the time of the offending. That is no excuse for his behaviour.
12	He is a first offender.
The victim 
13	The victim impact report given to the Court says that the victim is 12 years old and is in Year 7.  
14	She explains that at the time of the offending, she was terrified because she knew that the accused was committing an offence. She was crying during the incident because she felt pain on her genitals and back. After the incident, she was taken to hospital and her genitals were painful for a whole week. She was prescribed medication for the pain.
15	She is still terrified of the accused knowing that he is not in custody as she saw the accused in town on her way to her interview. 
16	She is now under the care of Samoa Victim Support Group but wanted to spend Father’s Day with her family. She wants the accused to be locked away.
17	She enjoys school and wants to focus on her future.
18	She confirms that the accused did not apologise and she does not forgive him.
Aggravating features of the offending
19	The aggravating features of this offending is firstly, the age of the victim. She is 12 years old. The accused is 21 years old. The younger the victim of a sexual offence the greater the need for protection: This proposition was stated by the New Zealand Court of Appeal in R v Hamilton-Wallace (CA 49/79, 14 August 1979, Woodhouse, Richardson and Somers JJ) to be so self-evident as to need no authority. In  R v Peachey (CA 92/01, 17 July 2001, Gault, Panckhurst and Potter JJ), another New Zealand Court of Appeal decision,  it was stated that sexual offending against under-age children is consistently regarded as more serious than similar offending against adults. Young persons were more vulnerable and the law provided for their need for greater protection.
20	In carrying out this offence of rape, the accused assaulted the victim by pulling her into the bushes. He also performed oral sex on her by way of the connection between his mouth and the genitalia of the victim. These are aggravating features of his offending.
21	Another aggravating feature is that the offending was premeditated. The accused told Probation that he was sexually attracted to the victim when she came to store fish in his family’s refrigerator because he had watched pornographic videos earlier. So he says he escorted the victim home and on the way to the victim’s home, he committed these offences.
22	The physical and psychological impact on the victim is taken into account as an aggravating feature. The victim was in pain during the incident and for a week after the incident. The victim was terrified of the accused at the time of the incident and remains terrified of the accused. She wants him locked up. Cooke J in  R v B (an accused) [1986] 2 NZLR 751 (CA) (Cooke, McMullin and Somers JJ) stated in sentencing of an offender for sexual intercourse with a  girl under 12 years;
•	Yet uppermost in the approach must be recognition that, in the expression adopted by counsel for the Solicitor-General in his argument in this Court, this kind of conduct can be said to rob children of their childhood. Moreover its long-term effects on the victims are incalculable.
Mitigating Factors
23	His guilty plea to the charges at the earliest opportunity is the only mitigating factor. It is mitigating as this 12 year old victim does not have to relive this painful ordeal by being required to give evidence.
Discussion
24	The charge of rape carries the highest penalty available under the criminal law and that is imprisonment for life. 
25	The accused assaulted the victim by pulling her into the bushes and then raped her. He also performed oral sex on her, that is connection between his mouth and genitalia of the victim. This was an appalling thing to happen to this young victim. 
26	There is a need to hold the accused accountable for the harm done to the victim, to promote in him a sense of responsibility for, and an acknowledgment of that harm, and to provide for the interests of the victim who is very young, vulnerable and defenceless.
27	There is also an overriding need to deter the accused and others from committing the same or similar offences and to protect the community from the accused. This protection is particularly important for children, the most vulnerable members of any community.
28	There is no other sentence apart from imprisonment for the accused. Prosecution has submitted that a starting point of 12 years imprisonment is appropriate.
29	Because of that inevitability, I turn now to identify the starting point and in determining that starting point, I am guided by the New Zealand Court of Appeal case of R v AM (CA 27/2009, CA 32/2009).  The Court of Appeal set sentencing bands for offending involving sexual violation. The Court provided two sets of guidelines to assist in determining the starting point.
30	Of more relevance and application (but to be read in conjunction with R v AM) is the case of Key v Police [2013] WSCA(28 June 2013) where the Samoa Court of Appeal found it appropriate to issue a guideline decision relating to rape sentences and reminded us that the reasoning in that case (R v AM) and decisions reached relating to rape sentences, except for the actual term of imprisonment, are incorporated into and form part of the decision in Key v Police.  Some uplift to the bands in R v AM was appropriate to reflect the greater maximum sentence in Samoa. 
31	The rape bands are.
(a) Rape band one: 8 – 10 years (Appropriate where the offending is at the lower end and where there is an absence of aggravating features or their presence is very limited);
(b) Rape band two: 9 – 15 years (Where violence and premeditation are moderate);
(c) Rape band three: 14 – 20 years (Offending where there are aggravating features at a relatively serious level); and
(d) Rape band four: 19 years to life (As well as the aggravating features in Band 3 it is likely to consist of multiple offending over considerable time. Repeat family offending would fall into this band).
32	In assessing culpability to determine a starting point in the case before me now, I take into account the premeditation involved in this case. The accused took steps to get the victim alone by escorting her home.
33	The vulnerability of the victim because of age is another factor going to culpability. The victim is 12 years old, the accused is 21 years old. There is an age disparity of 9 years, made even more marked by the fact that the accused is an adult and the victim a child.
34	The physical and psychological harm on the victim canvassed earlier is another aggravating factor.
35	As stated in R v AM and reiterated in Key v Police, I bear in mind that ‘...what is required is an evaluation of all the circumstances” and “a mechanistic view is not appropriate”.
36	Having therefore considered all the circumstances, and in particular having regard to the aggravating features relating to this offending (there being no mitigating features of the offending),  I place this offending in the middle to upper level of rape band two (9-15 years) where violence and premeditation are moderate.
37	I therefore take 13 years imprisonment as the starting point for sentence. I deduct 1/3 or 4 years 4 months for his early guilty pleas.
The result
38	For the lead offence of rape, the accused is convicted and sentenced to 8 years and 8 months imprisonment. 
39	On the charge of assault with intent to commit sexual violation, the accused is convicted and sentenced to 4 years imprisonment.
40	On the charge of unlawful sexual connection, the accused is convicted and sentenced to 4 years imprisonment.
41	All sentences to be concurrent.
42	Finally in terms of orders, there will be an order permanently suppressing or prohibiting the publication of the name of the victim and any details that might identify her. The suppression order does not relate to the defendant. 
JUSTICE TAFAOIMALO TUALA WARREN