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Police v Iosua [2024] WSSC 108 (7 June 2024)

IN THE SUPREME COURT OF SAMOA
Police v Iosua [2024] WSSC 108 (07 June 2024)

THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

VAESAVALI IOSUA, male of Tulaele

Defendant

Counsel: F Ioane for the Prosecution
D Roma for the Defendant

Sentence: 7 June 2024

SENTENCING OF JUSTICE TUATAGALOA

1. The defendant, Vaesavali Iosua, was found guilty by a panel of assessors to one count of rape of an 18year old female.
2. The penalty for the offence of rape is maximum life imprisonment.^[1]

The offending

3. The facts of this case have been traversed throughout the assessor trial. For purposes of sentencing the following facts are taken into account:
   • The victim is the niece of the defendant’s wife. The defendant’s wife had asked the victim to stay the night to help look after her children, because she needed to go somewhere and the defendant had gone out fishing (lama).
   • When the defendant returned home from fishing, his wife, the victim and children were all at home in the front open part of the house. The defendant went and showered then came and sat at the table to have his dinner. The wife at the time was lying on the couch falling asleep while the victim and his children were playing a game. The victim, while the defendant was having his dinner, went and asked him for a smoke. The defendant gave her a smoke and at the same time showed her his penis.
   • The defendant after having his dinner walked over and woke his wife for them to go sleep in their bedroom, telling his younger daughter to go and sleep with the victim in the other bedroom.
   • At some point during the night, the victim walked out to the open front part of the House, sat on one of the couches and had a cigarette. The defendant came out of their bedroom, walked over to where the victim was sitting pushed her down on to the couch and fell on top of her (faapalasi). The defendant placed one of his hands underneath the victim’s neck (te’e lona ua) while he pulled down her shorts and panties with his other hand. The defendant then tried to insert his penis but could not because she was moving around trying to stop the defendant but the defendant persisted and managed to insert his penis into her vagina and had sexual intercourse with her without her consent. Afterwards, the defendant told the victim not to tell his wife.
   • The victim told the defendant’s wife the next day and when she went home, she also told her grandmother.
   • The defendant was 28 years’ old and the victim was 18 years’ old at the time of the offending.

The defendant

4. The defendant from the Pre-Sentence Report (PSR) is the eldest of three (3) children and has two children with his wife, a 7year old and a 2year old. He is originally from Tulaele but at the time of the offending was living with his wife at her family in Savaii.
5. The defendant is a 28year old first offender. First offender status is linked to previous good character which is a mitigating factor. The testimonials of his Church Minister and wife confirm the defendant’s previous good character. They both speak of the defendant as an active member of the church and a hardworking person who provides for his family.

The Pre-Sentence Report

6. The defendant in the PSR prepared by Probation maintains that nothing happened:
   • “Vaesavali remained adamant of his innocence against the offence he is charged with. He vows that he did not sexually violate the victim and that she is now engaged, in a de-facto relationship with another man.”

I cannot accept this for the following reasons:

(a) At the trial, the defendant did not dispute that sexual intercourse took place. The only issue was that of consent; and
(b) The panel of assessors after having heard the evidence found him guilty beyond reasonable doubt.

Discussion

7. There is a need to protect women and young girls from those who continue to commit such heinous acts or behaviour. More and more of these sort of offending is happening in the home or familial environment where it is supposed to be a safe haven for our women and young girls, sadly it is not. The Court will never tire of imposing sterner sentences to send the message out that rape is a violent crime and society should never condone such behaviour but should do the best it can to stamp it out.
8. I find the behaviour of the defendant of showing his penis to an 18year old female who is a niece of his wife to be uncouth (lepopoi) and ill-mannered (le’ano’ano). The defendant’s continual denial in the PSR shows no remorse on his part.
9. There are no aggravating features personal to the defendant as offender but there are several as to his offending. These are:
   • Opportunistic v Premeditated: The offending was more pre-meditated than opportunistic. It was premeditated when he showed his penis earlier to the victim, and the time the offending took place was when his wife was asleep. The opportunistic is the fact that the victim was staying the night at their home and she was sitting in the front part of the house by herself having a smoke when everyone was asleep. Even if opportunistic, the Court of Appeal in R v AM^[2] refers:
     • “...offenders who show predatory sexual behaviour may be more likely to offend in an opportunistic manner. They should not be treated as lacking premeditation.”
   • Vulnerability of victim: The victim was in a vulnerable state and position at the time of the offending as she was held down under the defendant who was much stronger than her. The age difference of 10 years also reflects vulnerability on the part of the victim.
   • Violence involved: Violence is inherent in the offence of rape because it is committed with force and without the consent of the victim. There was sheer force used by the defendant which overpowered the victim to enable him to do what he did. Other than that, there was no collateral violence involved. Any violence was moderate to low.
   • Breach of trust: The familial connection between the defendant and the victim albeit through marriage. The victim is the wife’s niece who was asked by the wife to help look after their children and the defendant should have extended his love and respect to his children to the victim but, instead he raped her.
   • Offending took place in the context of a domestic relationship pursuant to section 17 of the Family Safety Act 2013.^[3]
   • Impact on victim: There is no doubt that sexual offending will always have an impact on the victim.
10. The Prosecution in their sentencing memorandum submits that this case falls within Band 3 of the Bands in Key v Police [2013] WSCA 03 and suggests an appropriate starting point of fourteen (14) years. The prosecution refers to various sentencing decisions of this court for guidance and for consistency.
11. Counsel for the defendant distinguish the present case to two cases of similar circumstances where both cases fall under Band 2 – P v NR [2021] WSSC 51 imposed a starting point of 12 years and Police v Ionatana [2017] WSSC 50 a starting point of 10 years. Counsel submits that the circumstances of the present case are much less serious and should fall under Band 1.
12. The golden rule is, each case is sentenced accordingly to its own circumstances.
13. In the circumstances of this case, the appropriate starting point is 11 years of Band 2 in Key v Police (supra). The only mitigating factor in the defendant’s favour is his previous good character and for that I deduct 12 months. This leaves 10 years.

Sentence Impose

14. The defendant, Vaesavali Iosua, is convicted and sentenced to 10 years’ imprisonment less any time in custody.

JUSTICE TUATAGALOA

^[1] Crimes Act 2013, ss. 49(1)(a) and 52(1).
^[2] R v AM [2010] NZCA 114, [2010] 2 NZLR 750
^[3] Section 2 defines ‘domestic relationship’ to include relationship related by marriage or blood.