The Court set a starting point of 32 years imprisonment in the sentencing of a 38-year-old man from Savaii for 12 counts of rape against his niece, who was only 8 years old at the time.
In her sentencing report, Supreme Court Justice Tafaoimalo Tologata Leilani Tuala-Warren, said the victim had been forced to have sex multiple times over a period of 9 months with the defendant, who is her uncle.
“The accused was therefore in a position of trust in relation to the child victim,” stated Tafaoimalo.
“He breached that trust over and over again, when he raped her, twelve times..
“This is deplorable at the highest level. Those 9 months would have been terrifying and extremely traumatic for this child,” stated the Supreme Court Justice.
The victim is now 11 years old and has been living at the SVSG Campus of Hope since the matter had come to light.
In sentencing Justice Tuala-Warren says there is an overriding need to deter the accused and others from committing the same or similar offences and to protect the community from the accused.
Through his defense counsel the accused had submitted early guilty pleas to 12 counts of sexual violation – an offense which carries a maximum penalty of life imprisonment in Samoa.
The offending
According to the Police summary of facts admitted by the defendant, the incidents happened between 1 May 2020 and 31 January 2021.
The accused worked as a farm hand in Upolu. A sister-in-law told police that he visited the family home in Savaii during his work breaks. He would stay in his room and drink alcohol for most of the day.
The defendant says he was intoxicated during each of the rape incidents.
By his own admission, it was established that he would approach the victim while their whole family were asleep. He would then rape her, cover her mouth and tell her not to say anything otherwise he would fasi her.
The first time it happened, the 8 year old victim had bled. She felt pain but did not know what was happening. She now understands that it was wrong but says at the time, she thought this is what family members did. She told her grandparents about what had been happening.
The accused
The 38 year old is a single father of one child. His sister-in-law who gave a statement to police says she’s concerned for the safety of their young daughters and asked the Court for an imprisonment term.
She says their whole family had been banished from the village when the matter came to light. They were later reinstated after paying a village fine of $500 tala.
The accused told Probation that he would prey upon the victim by being close to where she slept at night and would use every opportunity to sexually violate her.
Impacts on the Victim (Warning: the description may be difficult for some readers)
The victim, whose identity is protected by a permanent order of the Court, is now 11 years old and still currently under the care of Samoa Victim Support Group.
In her VIR – Victim Impact Report – she says that every time he did what he did to her, she felt pain in her vagina and she would try to bear with it because she was so afraid of him. He threatening her and telling her not to tell anyone.
She says she bled each time he had sex with her. She says because she did not know how to react, she thought this was normal within families because of the multiple times he did this to her.
She does not want to see him ever again. She says she now realises that what he did to her was not normal and was wrong.
Aggravating features of the offending
Justice Tafaoimalo listed the aggravating factors such as the age of the victim and the impacts of such horrific acts on a child.
“Rape is inherently violent but he also squeezed her mouth with his hands on at least three occasions (the first, second and fifth incidents),” Justice Tuala-Warren clarifies.
“Her vulnerability, the age gap between the accused and the victim, the familial relationship and gross breach of trust are all aggravating features of the offending..
“There was also threatening words on at least two occasions.”
Justice Tafaoimalo said the impacts of such deplorable acts on the child victim would have been traumatizing for her.
She referred to the victim’s description of pain expressed in her impact report.
“During each offending, the victim felt pain in her vagina. The first time it happened she felt blood coming out of her vagina as she was still a virgin and this was the first time that she had been violated..”
The judge took into account that the accused had preyed on the victim by ensuring he was close to where she slept so he could have sex with her.
“This predatory behaviour is an aggravating factor. It also suggests a high level of premeditation which is another aggravating factor.”
Mitigating Factors
Justice Tafaoimalo clarifies that under Samoa’s Sentencing Act, the fact that the defendant was affected by the voluntary consumption or use of alcohol is not considered as mitigating.
Justice Tafaoimalo did take his early guilty pleas into account in mitigation, his previous good character prior to offending, the fact that he is a first offender, the apology to the victim and her mother, and his remorse conveyed by Defence Counsel.
The Rape Bands
The Supreme Court Judge set out the four bands of rape as we’ve seen listed in many previous sentences of sexual offending handed down by Justice Tuala-Warren over the years.
The rape bands established by case law and applied by the Courts in Samoa are:
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);
Rape band two: 9 – 15 years (Where violence and premeditation are moderate);
Rape band three: 14 – 20 years (Offending where there are aggravating features at a relatively serious level); and
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).
The Sentence
Prosecution submitted that a starting point for imprisonment should fall within the higher end of band four and suggested 25 years.
Defence Counsel had originally submitted the offending fell within Band one (8-10 years), however, she was given an opportunity to make submissions on band four given the seriousness of the offending. Defense then submitted a starting point at the lower end of band four being 19 years imprisonment is appropriate.
Justice Tafaoimalo states that she is guided by the New Zealand Court of Appeal and the guidelines provided to assist in determining an appropriate starting point. She also referred to guidelines set by Samoa’s Court of Appeal.
“..what is required is an evaluation of all the circumstances” and “a mechanistic view is not appropriate”.
Justice Tologata Tafaoimalo assessed the culpability to be very high and set 32 years as the starting point.
“..go determine a starting point in the case before me now, I take into account that this offending occurred multiple times to this child victim. She was raped by her uncle within her home. She had to leave her family and be placed under the protection of Samoa Victim Support Group where she currently resides. She suffered physically and mentally from this offending, and this is something that will most likely affect her for the rest of her life..
“I place this offending in rape band four (19 years-life ) where there is multiple and repeat family offending, and aggravating features at a serious level..”
Deductions of 3 years were made for his previous good character, one year for his apology and remorse, and 9 years for his early guilty pleas.
The result
For each count of rape the accused is convicted and sentenced to 19 years imprisonment, to be served concurrently with any 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”.
Sexual Violence in Samoa
A National Public Inquiry into Family Violence in Samoa led by the Office of the Ombudsman’s Human Rights Institute found 9.5% or one in ten women respondents said they had been raped by a family member in their lifetime.
One third or 33% of women who are raped contemplate suicide, and 13% of them actually do attempt to take their own lives.
Cases of rape, incest and sexual violation of young girls continue to flood the Courts every week.
Last November, Justice Fepuleai Ameperosa Roma took a starting point of 30 years in sentencing a father for the multiple rapes of his 17 year old daughter. He got 20 years after deductions.
Not a week goes by without a case of sexual violation against girls before the Court. The issue has reached epidemic levels in Samoa despite programmes being rolled out each year.
The only shelter in Samoa, SVSG, houses hundreds of children while they await the completion of court proceedings towards their abusers.
If you or someone you know is being physically, emotionally or sexually abused, please contact the Police Domestic Violence Unit on Ph 22222 or call the Samoa Victim Support Group 24-hour free-calling hotline number for help 800-7874.
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