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Police v Nauer [2016] WSSC 188 (8 September 2016)

IN THE SUPREME COURT OF SAMOA
Police v Nauer [2016] WSSC 188

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

FLOYD IULIANO NAUER male of Vaimea and Togafu’afu’a.
Defendant

Counsel: M Lui for prosecution
R V Papalii for defendant

Hearing: 17, 18 & 19 August 2016

Sentence: 08 September 2016

SENTENCE

1. The defendant faced two charges. First that in the early morning hours of Saturday, 28 June 2014 at Togafu’afu’a he did rape the complainant. A solo mother whose details have been suppressed in accordance with the usual practice of the court. He is also charged that at the same place and date with intent to cause grievous bodily harm, he did cause grievous bodily harm to the complainant.
2. The defendant pleaded guilty to the grievous bodily harm but not guilty to the rape charge. After a defended hearing a panel of assessors returned a unanimous verdict of guilty of rape. For reasons to be published in due course I am setting aside the verdict of the assessors pursuant to section 100 of the Criminal Procedural Act 1972. What must be dealt with today is the sentencing of the defendant on the charge he pleaded guilty to the grievous bodily harm.
3. The trial evidence established the following: on the night of Friday, 27 June 2014 the complainant visited several nightclubs with her friends. Around mid-night they ended up at Tufuiopa partying on the cement in front of the Asaua Medical Clinic. The complainant left the group and proceeded west down Tufuiopa road to Magi Fidows after hours shop located just around the corner from where her and her friends were partying. She said she went to buy cigarettes. It was at the shop that she encountered the defendant drinking in front of the shop. She knew the defendant as he is a relative of her ex-defacto partner.
4. The complainants evidence was the defendant bummed a cigarette off her and offered her a small vailima. She accepted and afterwards gave him $10:00 to buy two more small vailimas. The defendant instead returned with two large vailimas and suggested they move to another more private location to enjoy their drinks. They did so and according to the complainant after consuming about half of her vailima bottle, she told the defendant he was drunk and he should go home. She left the area but the defendant followed her around the corner and into Tufuiopa Road. He called out to her to stop and she did. When he caught up they had a further conversation and she again repeated to the defendant he was drunk and should go home. It is here that the versions given by the complainant and the defendant diverge.
5. The complainant says as she turned to continue walking to her friends, the defendant blindsided her with a bottle to the face. When she regained consciousness she was lying on a side road with the defendant kneeling over her. He threatened her and raped her while she was bleeding everywhere from her wounds. Photographs of the crime scene show the presence of blood in the area of this incident. A substantial amount of blood. Not only on the rocks leading to the alleged crime scene but also at the crime scene itself. She said after intercourse occurred she was able to extract herself from the defendant and ran naked onto the road seeking help. Her friends who were drinking not very far away responded and took her to the hospital.
6. The defendants version is radically different. He maintains they had consensual sexual intercourse on the side road. But post-sex an argument occurred involving the defendants cell-phone which the complainant put inside her bra. Leading to him pursuing her and bottling her in the face on the main road. After which he then dragged her to the back of the side road to the scene of the intercourse and tried to revive her.
7. The assessors obviously did not accept this improbable version of events and instead preferred the complainants testimony hence their verdict of guilty of rape. I on the other hand have serious doubts about the veracity of the complainants evidence. And the defendants explanation is possible albeit not one hundred percent (100%) convincing. But as will be apparent from the reasons I have yet to produce the onus in criminal cases rests on the prosecution to prove its case beyond reasonable doubt. Not on the defendant to establish or demonstrate his innocence or to convince the assessors and the court of the truthfulness of his story. My reversal of the rape verdict turns on these very principles.
8. In relation to the grievous bodily harm inflicted by the defendant, there is no question his assault caused severe and permanent injuries. The medical report says she sustained multiple lacerations, most of which were on the right side of her face. The largest of the lacerations spanned most of the right side. The report talks about a gaping dirty wound measuring about 9cm x 4cm reaching down to the nostril and most of the area around her lips. The doctor also found two other lacerations one on the left side of the neck about 3 to 4cm in length and one on the chest near the left sternum border about 3cm in length. Photographs of the complainants wounds were produced at the trial and the severity of her injuries are obvious.
9. Her victim impact report says she still feels pain from her injuries. And ever since this incident she is not the same, physically and psychologically. She has trouble sleeping and she cannot shake the feeling that these injuries are like a permanent disease. Page two of the report goes into more detail about the psychological impact of her injuries. It is clear from what I have seen that without costly and expert plastic surgery, which is something unavailable in this country, she would be reminded of her ordeal every time she looks in the mirror. The horror of that over the course of a life-time for a young woman is difficult to express in words and would be even harder to imagine.
10. The maximum penalty for grievous bodily harm is 10 years in prison. I accept the prosecutions submission that in the circumstances of this case an appropriate start point is 5 years in prison. But that must be upgraded to reflect the particular aggravating features of what you did. Firstly your use of a weapon namely a large vailima bottle, on an unarmed and unsuspecting female. And secondly you did not strike some other part of the body, you aimed for the face. Arguably the most vulnerable area of a female person. The start point for your matter is therefore in my view appropriately set at 6½ years in prison.
11. From that I will deduct 6 months to reflect your good service to your aiga and the fact that you are a first offender and you are still a young man. That leaves a balance of 6 years.
12. For your guilty plea, normally a one-quarter of sentence deduction is allowed for guilty pleas. That would be a period of 18 months. However I reduce that in this case to 12 months because the final outcome of these proceedings was the complainant had to testify and a trial was necessary because of the other charge against you. That leaves a balance of 5 years in prison.
13. No reconciliation or traditional apology or assistance even to the complainant for her medical costs has been rendered, there is no deduction required for that. Your counsel has requested the court take into account that the complainant took your cell-phone and that is what led to the assault in the first place. I respectfully disagree. That is not any form of provocation and even if it was, your retaliation was considerably out of proportion.
14. In respect of this matter of causing grievous bodily harm to the complainant you will be convicted and sentenced to 5 years in prison. Any time spent in custody is to be deducted from that term.
    

JUSTICE NELSON