Home | Databases | WorldLII | Search | Feedback Supreme Court of Samoa

Police v Mosese [2017] WSSC 44 (26 May 2017)

SUPREME COURT OF SAMOA
Police v Mosese [2017] WSSC 44

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

A N D:

SAULO PAULI MOSESE male of Salelologa.
Accused

Counsel:
L Sua-Mailo for prosecution
Accused in person

Sentence: 26 May 2017

S E N T E N C E

The charges

1. The accused Saulo Pauli Mosese appears for sentence on one charge of sexual violation by rape, contrary to s.49 (1) of the Crimes Act 2013, which carries a maximum penalty of life imprisonment pursuant to s.52 (1), and one charge of common assault, contrary to s.123 of the Act, which carries a maximum penalty of one year imprisonment. To both charges, the accused pleaded guilty at the earliest reasonable opportunity.

The offending

2. The prosecution’s summary of facts which was confirmed by the accused shows that on 2 January 2017, the victim in this matter was at the Salelologa wharf to catch the 4pm ferry for Mulifanua. Before the ferry arrived, the victim’s uncle picked her up and they went to the Salelologa market where they drank alcohol with her uncle’s friends. Later on the victim was taken to the wharf but the ferry for Mulifanua had already left. So the victim went with her uncle and his friends to an area near the Evaeva bar where they continued drinking. When they arrived at that area, the accused was drinking alcohol there with his friends. The victim joined the accused and his friends and carried on drinking alcohol.
3. About 10pm at night, the victim was asked by a friend of the accused to sleep at his place until the following morning. The victim then went with the accused and his friend to the place of the accused’s friend. After having dinner, the accused’s friend left the house leaving on the victim, the accused, and another friend of the accused in the house. Shortly afterwards, this other friend of the accused also left the house through the front door and locked the door from outside. At that time, the accused also locked the front door from inside.
4. The accused then stood on a chair and told the victim to suck his penis but she refused. He then asked the victim to let him suck her vagina but she refused and screamed. The accused then approached the victim and punched her on the mouth and she fell down unconscious. The accused then punched the back of her neck which woke her up.
5. The accused then tried to choke the victim with his hands around her neck but she bit the accused’s hands causing him to loosen his grip. The accused then pulled the victim’s hair and threw her onto a mattress. He then grabbed a knife lying on a table and used it to tear the victim’s clothes while at the same time threatening to cut up the victim if she did not do what he wanted. After the accused had removed the victim’s clothes, she stopped resisting and the accused then had sexual intercourse with her without her consent freely and voluntarily given.
6. After sexual intercourse had taken place, the victim told the accused that she wanted to take a shower. They then come outside of the house. This provided the victim with the opportunity to run to the main road and stopped a vehicle asking for help. The matter was then reported to the police.

Alcohol and Drugs Court (ADC)

7. Even though alcohol was very much involved in this offending, the seriousness of the charge and the offending meant that the penalty was likely to be more than 3 years imprisonment. The accused was therefore not eligible for referral to the ADC clinician for an assessment.

The victim

8. The victim is 23 years old. She is married with one child. She is currently unemployed. Even though a victim impact report was not provided, this offending must have had a serious psychological impact on the victim which is likely to remain with her for a long time.

The accused

9. The accused is a 34 year old male of Salelologa. He is single and is currently unemployed.
10. His pre-sentence report shows that the accused finished school at Year 12. He then stayed at home helping out with his family’s plantation and domestic chores. It appears that his father is the only member of his family with a job. The accused comes from a poor family.
11. The accused’s pre-sentence report also shows that the accused is a heavy consumer of marijuana and prior to the present offending he was not only drinking alcohol but smoking marijuana. The accused has a previous conviction in 2014 for possession of narcotics for which he was sentenced to 18 months imprisonment.

The aggravating features relating to the offending

12. There are serious aggravating features relating to this offending. The use of violence and the threats of violence were at a relatively high level. Not only did the accused punch the victim on the mouth causing her to become unconscious but he also tried to choke her. He only desisted when the victim bit his hand. He then threw her onto a mattress and used a knife to tear her clothes. At the same time he threatened the victim that he will cut her up with the knife if she did not do what he wanted.
13. The use of a weapon, namely, a knife to tear the victim’s clothes and to threaten her is also an aggravating feature relating to this offending.
14. There also appears to be a relatively high level of premeditation fuelled perhaps by the accused’s intoxication. From what happened from the time the victim was asked to spend the night at the place of a friend of the accused to the time the accused and the victim were left alone inside the house and the front door was locked, it appears that the victim was set up for the accused to have sex with her regardless of whether she consented or not.
15. The psychological impact of this offending on the victim is also an aggravating feature relating to the offending.

The mitigation features relating to the accused as offender

16. There is no mitigating feature relating to the accused as offender except for his guilty plea at the earliest convenience. Even though the accused told the Court that he is remorseful and this will be his last appearance before the Courts, I am not prepared to accept what he says. On 15 January 2014, he was convicted and sentenced to 18 months imprisonment for possession of narcotics. That sentence must have ended in July 2015. But now the accused is appearing before this Court again on the more serious charge of sexual violation by rape. Not only that, the accused was drinking alcohol and again consuming marijuana shortly before this offending took place.

Discussion

17. In determining what should be the starting point for sentence in this case, I bear in mind that this is not a sexual case involving a family relationship between a father and a daughter or some other kind of family relationship. So sentences in cases of incest or sexual violation between a victim and a stepfather are not strictly relevant.
18. Having regard to the aggravating features relating to the offending and the need for deterrence in this type of case, I will take a starting point for sentence of 14 years. I will deduct 1/3 for the accused’s early guilty plea. That leaves 9 years and 4 months. To show mercy on the accused, I will deduct 4 months for the other personal circumstances of the accused as shown in the pre-sentence report. That leaves 9 years.

Result

19. On the charge of sexual violation by rape, the accused is convicted and sentenced to 9 years imprisonment.
20. On the charge of common assault, the accused is convicted and sentenced to 6 months imprisonment.
21. Both sentences are to be concurrent.
22. The time that the accused has already spent in custody is to be deducted from this sentence.

CHIEF JUSTICE