Supreme Court of Samoa

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

GASOLOGA MATAMUA male of Salelologa and Satupaitea
Accused

Counsel:
L Sio for Prosecution
M Soonaloloe for the accused

Sentence: 8 November 2017

S E N T E N C E

THE NAME OF THE VICTIM IS PERMANENTLY SUPPRESSED.
The charge

1. The accused appears for sentence on three charges:

One count of rape pursuant to s.49(1)(a) and 52(1) of the Crimes Act 2013 which carries a maximum penalty of life imprisonment;

One count of sexual connection with a young person under 16 years pursuant to s 59 of the Crimes Act 2013 which carries a maximum penalty of 10 years imprisonment; and

One count of indecent act with or on a young person pursuant to section 59(3) of the Crimes Act 2013 which carries a maximum penalty of 7 years imprisonment.

2. The accused was found guilty by assessors after a defended hearing on 12 October 2017.

The offending

3. According to the evidence, on Friday 2 September 2016, the victim was sent by her mother to the accused family to order coconuts for the next day. This was in the evening. These coconuts are sold by the victim’s family at the wharf. The homes of the victim and the accused are in close proximity in the same village. When the victim arrived the accused was burning rubbish next to his faleoo. The victim asked him about the coconuts and the accused told her to come and look at the toga niu which is behind his faleoo. She went and looked at the toga niu but did not see any coconuts so she turned to leave. The accused lifted her up and carried her with her head down and legs in the air, into his faleoo. He put a pillow over her mouth and removed her clothes. He then put his mouth on her vagina and inserted his finger into her vagina. The victim felt pain in her vagina. He took her hand and made her rub his penis. He then put his penis inside the victim’s vagina. She says she again felt pain. She found an opportunity to scream and that is when the accused put his ie back on and ran away.
4. The victim returned home and told her mother what had happened.

The accused

5. The accused is 34 years old. He is unmarried and lives at home doing daily chores. He lives with his elderly father who he looks after.
6. There has been no reconciliation with the victim’s family.
7. The accused was given an opportunity to say something before sentencing. He made a comment about appealing the assessor’s verdict. He showed no remorse. His lack of remorse was astonishing.
8. The accused has a previous conviction for theft in 1997.

The victim

9. According to the victim impact report, the victim says she felt pain in her vagina when the accused inserted his finger inside her and then more pain when he inserted his penis inside her. She speaks about her fear when he carried her to his faleoo and when he put the pillow over her mouth. She says that once it was over she put on her clothes and just wanted to see her mother and tell her what happened.
10. She says that she thinks of this all the time and does not know when she will ever get over it. She feels angry and sad.

Aggravating features of the offending

11. The aggravating features of this offending are firstly, the age of the victim. She was 13 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 4 14 August 1979, Woodhousehouse, Richardson and Somers JJ) to be so self-evident as to need no authority. In R v Peache (CA&92/01, 17 July 2001, Gault, Panckhurst and Potter JJ), another New Zealand Court ourt of Apof 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. The Sentencing Act 2016, section 7(1)(g) further reinforces this as the victim was particularly vulnerable because of her age which was known to the accused. It is aggravating that he took advantage of the victim being alone.
12. The age difference of 21 years is also an aggravating factor. The accused is an adult of 34 years, as opposed to this young girl who is 13 years old.
13. He planned his offending because he knew he was alone and there was no one in his faleoo. He lured her to the back by telling her to look in the toga niu for coconuts in an attempt to get her closer to him and to the faleoo. He knew she had come alone to order the coconuts. He carried her into the faleoo so she would not run away.
14. Rape is an inherently violent act. As part of raping her, he forcibly carried her into the faleoo and he put a pillow over her mouth so that she would not scream, which would have been terrifying for the young victim.
15. The physical and psychological impact on the victim is taken into account as an aggravating feature. She felt physical pain in her vagina and was scared when the accused carried her and used a pillow to block her mouth. The psychological effects of the rape on her will be lengthy as she says she thinks about it every day and does not know when she will be able to get over it. She feels angry and sad.
16. Prosecution submits that it is an aggravating factor relating to the accused that he has a previous conviction for theft. I do not consider that as an aggravating factor because his conviction is of a different nature to the charges for which he is now sentenced and it occurred in 1997, 20 years ago.

Mitigating Factors

17. I take into account his personal circumstances in that he is looking after his elderly father.

Discussion

18. Sadly again, this is yet another case of an adult raping a child, a child known to him and from the same village. The prevalence of this offending has become apparent and our children are at risk. Deterrence is of the highest importance, followed closely by the need to hold the accused accountable for the harm done to the victim.
    
19. It is sad that a seemingly innocent act of running to the neighbours to order coconuts has resulted in such devastating consequences for this young victim.
20. The charge of rape carries the highest penalty available under the criminal law and that is imprisonment for life. In Police v Filipo [2011] WSSC 127, the Court stated;

Rape is one of the most serious crimes as stated in the legislative provisions of most societies and was always regarded as such at common law. The reasons are self-evident.

21. Vaai J in Police v Pauesi (9 May 2008) remarked about sentencing for rape offences;

In considering the sentence for sexual offences, particularly rape, the primary consideration is a term of imprisonment. There should be an element of deterrence to reflect the gravity of the offence to punish the offender, to deter the offender and to deter other like-minded people. The sentence is also to convey condemnation by society of such criminal conduct.

22. In this case, 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 was very young, vulnerable and defenceless at the time.
23. Prosecution has submitted that a starting point of 18 years imprisonment is appropriate in Band 3 of Key v Police.
24. Defence Counsel submits that the accused’s previous conviction for theft should not be considered an aggravating feature of the accused.
25. 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.
26. To be read in conjunction with R v AM, is the case of Key v Police [2013] WSCA(28 June 2013) in which 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.
27. The rape bands in Key v Police 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).

28. 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”.
29. In assessing culpability to determine a starting point in the case before me now, I take into account the ages of the victim and of the accused at the time of the offending. The accused was 34 years old, and the victim 13 years old. He was 21 years older than her and she lived in the same village. She was known to him. He planned his offending, lured her to where his faleoo was, lifted her into the faleoo and used a pillow to cover her mouth so she would not scream. Not only did he rape her, but he performed sexual acts on her prior to the rape. The effects on the victim are substantial. She is still finding it hard to get over what happened to her.
30. I assess his culpability at a relatively high level as the aggravating features are at a relatively serious level.
31. In relation to the lead charge of rape, having 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 end of rape band three (14-20 years) where there are aggravating features at a relatively serious level.
32. I therefore take 17 years imprisonment as the starting point for sentence. I deduct 6 months for his personal circumstances.

The result

33. For the charge of rape, the accused is convicted and sentenced to 16 and ½ years imprisonment.
34. For the charge of sexual connection with a young person the accused is convicted and sentenced to 5 years imprisonment.
35. For the charge of indecent act on a young person, the accused is convicted and sentenced to 3 years imprisonment.
36. All sentences are concurrent so that the accused will serve in total 16 ½ years imprisonment.
37. Time spent in custody to be deducted.

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 TUALA-WARREN