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Police v Silva [2019] WSSC 54 (18 October 2019)

THE SUPREME COURT OF SAMOA
Police v Silva [2019] WSSC 54

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

NIUSILA UTI SILVA male of Vaimoso, Tauese and Fugalei
Accused

Counsel:
F Ioane for Prosecution
C Vaai for the Accused

Sentence: 18 October 2019

SENTENCE

THE NAME OF THE VICTIM AND HER FAMILY IS PERMANENTLY SUPPRESSED.

The charges

1. The accused appears for sentence on the following charges;
   • (a) One count of sexual connection with a child under 12 years pursuant to section 58(1) of the Crimes Act 2013 which carries a maximum penalty of life imprisonment;
   • (b) One count of sexual connection pursuant to section 59(1) of the Crimes Act 2013 which carries a maximum penalty of 10 years imprisonment; and
   • (c) One count of attempted sexual connection pursuant to section 59(2) of the Crimes Act 2013 which carries a maximum penalty of 10 years imprisonment.
2. He changed his pleas from not guilty to guilty on 17 May 2019, the day on which the matter was to be heard.

The offending

3. According to the summary of facts admitted by the accused, he and the victims are neigbours. At the time of the offending, he was 41 years old and the victim was 11 years old.
4. Sometime between 1 January 2017 and 31 December 2017, the victim went to play with the accused’s nieces after school. As she approached the home of the accused, he waved out to her to come into his room which was at the back of the house. He took the victim into one of the rooms and laid her on the bed facing downwards. He asked the victim if they could have sex and the victim replied ‘no’. He then grabbed the victim’s hands and opened her shorts and panty. He got onto the victim’s back and had sex with her from the back. The victim felt pain but the accused only stopped when he heard noises from the kitchen.
5. The second offending occurred on 30 September 2018 when the victim went to the shop around 9am. The accused approached and asked to have sex. When the victim refused, the accused grabbed the victim’s hands and held her against a wall. He then fondled her vagina with his hands. As the accused was about to pull down the victim’s pants, the victim’s aunty called out. The victim was scared and crying and her aunty took her home.

The accused

6. The accused is now 42 years old. He works on the family plantation. He is single. He lives with his mother and sister’s family.
7. He left school after one year in college and worked as a carpenter.
8. His sister says that the accused is a caring, loving and helpful person.
9. The accused told Probation that he often gives money to the victim to help with her school needs. He told Probation that the victim is entirely to blame as she is a skilful liar. He expressed remorse to Probation and through Counsel today.
10. There has been reconciliation between the families of the accused and the victim as his family went to apologise.
11. He is a first offender.

The victim

12. The victim is now 13 years old. She says that when the offending occurred she felt angry and scared.
13. She says she does not want to see the accused again and wants him punished for what he did to her.

Aggravating features of the offending

14. This offending was premeditated. The accused raped the victim in 2017 and then again in 2018, attempted to rape her. It not only shows premeditation but also deliberate preying on this young victim who no doubt trusted the accused as he was her neighbour. He breached that trust.
15. The victim was vulnerable given her young age of 11 years. The accused was her neighbour and known to her. He forced her to have sex against her will. The age disparity of 30 years is also aggravating as she is a vulnerable child and he is a grown man. For him to blame a child of 11 years for what happened to Probation, is unacceptable and offensive.
16. The defencelessness of the victim in this case is also an aggravating feature. In accordance with section 8(2) Sentencing Act 2016, the Court must take into account the defencelessness of the victim, as an aggravating factor when sentencing an accused in a case involving violence against a person under the age of 18 years. Rape is an inherently violent offence, and in this case, the accused grabbed the victim on both occasions and forcibly removed her clothes her clothes on the first occasion and attempted to on the second occasion.
17. The extent of the harm to the victim is taken into account. She says she was afraid. This is a young girl of 11 years old. This offending will no doubt trouble her for the rest of her life. This was a serious violation of the victim’s sexual autonomy.

Mitigating Factors

18. I take into account in mitigation his previous good character, his personal circumstances and his remorse which includes the apology by his family. Lastly I take into account his belated guilty pleas.

Discussion

19. This is a case of acquaintance rape, that is rape by someone known to the victim. The victim is defined as a ‘child’ being under 12 years old. This offending is prevalent in Samoa. This offending must be met with deterrent sentences because there is a significant need for deterrence, to deter the offender and to deter other like-minded people from targeting young children who cannot defend themselves and have not yet acquired the maturity to realise what is happening.
20. 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. The effects of this offending on the victim will no doubt last a lifetime.
21. Prosecution has submitted that a starting point of 12 years imprisonment is appropriate. Defence Counsel has recommended that a starting point of 2 years imprisonment is an appropriate starting point.
22. Because of the inevitability that the accused will be imprisoned, 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.
23. The case of Key v Police [2013] WSCA(28 June 2013) is to be read in conjunction with R v AM. In Key v Police the Samoa Court of Appeal issued 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.
24. I use these sentencing bands in this case, as this offence of sexual connection with a child under 12 years has the same maximum penalty as rape which is life imprisonment. Essentially this is a case of rape of a child.
25. 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).

26. 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”.
27. In assessing culpability to determine a starting point in the case before me now, I take into account the young age and vulnerability of the victim, the breach of trust, the impact on the victim, the premeditation involved. This case falls within the upper range of Band 2 (9-15 years) where violence and premeditation is moderate.
    
28. I consider the totality of offending where I am imposing sentences of imprisonment for two or more offences so that the individual sentences reflect the seriousness of each offence. (s 56 Sentencing Act 2016).
29. 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 take 15 years imprisonment as the starting point for sentence. I deduct 1 year for his previous good character, his remorse, apology, and personal circumstances. I deduct 2 years and 6 months for his belated guilty pleas.

The result

30. For the offence of sexual connection with a child under 12 years the accused is convicted and sentenced to 11 years and 6 months imprisonment.
31. He is convicted of sexual connection pursuant to section 59(1) of the Crimes Act 2013 and sentenced to 2 years imprisonment.
32. He is convicted of attempted sexual connection pursuant to section 59(2) of the Crimes Act 2013 and sentenced to 1 year imprisonment.
33. All sentences will be served concurrently so that the accused will serve a total of 11 years and 6 months imprisonment.
34. Time spent in custody will be deducted.
35. Finally in terms of orders, there will be an order permanently suppressing or prohibiting the publication of the name of the victim and her family. The suppression order does not relate to the accused.
    

JUSTICE TAFAOIMALO LEILANI TUALA-WARREN