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Police v Fiaputa [2013] WSSC 121 (19 August 2013)

[THE NAMES OF THE COMPLAINANT, HER FAMILY AND HER VILLAGE ARE SUPPRESSED]

SUPREME COURT OF SAMOA

Police v Fiaputa [2013] WSSC 121

Case name: Police v Fiaputa

Citation: [2013] WSSC 121

Decision date: 19 August 2013

Parties: POLICE (prosecution) and PANETA FIAPUTA male of Vailele, Moamoa, Falelauniu and Lefagaoalii Savaii

Hearing date(s): 27 – 28 June, 1 July, 3 – 5 July, 8 July, 13 and 15 August 2013 (Mention)

File number(s):

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): JUSTICE SLICER

On appeal from:

Order:

Representation:
R Titi for prosecution
T I Ponifasio for defendant

Catchwords:

Words and phrases:

Legislation cited:
Crimes Ordinance 1961, ss. 8, 47, 83, 78 and 82
Criminal Justice Act 1985 (NZ), s.6

Cases cited:
The Queen v De Simone (1980 – 1981) 147 CLR 383
R v Kirk [1901] NZGazLawRp 83; (1901) 20 NZLR 463
R v Marshall [1941] NZLR 361
Peti Key v Police CA 07/13
R v AM [2010] NZCA 114; [2010] 2 NZLR 750
Police v Luamanuvae [2012] WSSC 4
Police v Sione [2011] WSSC 128
Police v Filipo [2011] WSSC 127
Police v Tinifu (7 May 2012)
Police v Pauesi (9 May 2008)
Police v Laifa (22 October 2012)

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

POLICE

Prosecution

AND

PANETA FIAPUTA male of Vailele, Moamoa, Falelauniu and Lefagaoalii Savaii

Defendant

Counsel: R Titi for prosecution

T I Ponifasio for defendant

Hearing: 27 – 28 June, 1 July, 3 – 5 July, 8 July, 13 and 15 August 2013 (Mention)

Sentence: 19 August 2013

Charges: Rape (x2), Abduction (x1), Assault (x1), and Threat to Kill or Do Bodily Harm (x1)

SENTENCE OF SLICER J

1. Paneta Fiaputa has been found guilty by assessors of the crime of rape, abduction, assault, of use of words threatening to kill or cause bodily harm contrary to the Crimes Ordinance 1961, sections 8, 47, 83, 78 and 82.
2. The course of criminal conduct took place over an extended period between the afternoon of 30 November and 1 December 2011 at two villages some distance apart.
3. The complainant aged 23 was an unmarried woman who had given birth to two children; one still born and one boy raised by her extended family. The defendant aged 26 was married. The two had met through mutual attendances at church functions and had previously had consensual sexual intercourse during an extramarital relationship over some three months.
4. The factual background to the relationship was extensively outlined at trial and it is not necessary to detail it in these reasons for sentence. The substance as claimed by the defendant was that the two had fallen in love but that the complainant’s family would not accept him unless she got pregnant forcing a marriage. On his version the two would elope, live together until pregnancy and then after his divorce win the approval of her family. The complainant’s version was completely different. She admitted a sexual relationship but stated that he had abducted her and her five year old nephew and held them both at one location and her at two fales where she was raped. There had been no plan of elopement; rather that the defendant had led her family to believe that her absence was because the three of them had gone to Savaii and missed the return ferry. On the prosecution’s case the defendant had used the five year old child as a means of forcing the complainant to accompany him to a relative’s fale where he had assaulted, threatened and raped her. When her relative attempted to locate and retrieve the child he had forced her to a different fale at a different village where she was again held captive and raped. She was eventually located by members of her family and rescued by her brother-in-law and returned her home. During that time she was threatened with harm with the words “e ke koe ku loa i fafo o’u kipikipia loa oe”, and assaulted by being slapped to the face. She physically resisted the defendant but was overpowered and raped.
5. The complainant and the defendant both gave evidence at trial.
6. The verdict of the assessors shows that they rejected the defendant’s version and accepted that the conduct was planned and prolonged, violent and traumatic for the complainant and a young child.
7. During the trial the complainant gave evidence of a further assault and threat and a third rape, none of which resulted in Informations. When an indictment or Information does not refer to particular circumstances of aggravation a Judge in imposing sentence may have regard to those circumstances only if they would not render the accused liable to a greater punishment (The Queen v De Simone (1980 – 1981) 147 CLR 383). The New Zealand Courts have held that where there are circumstances of aggravation requiring the imposition of a more severe punishment those circumstances must be charged or identified in the indictment (R v Kirk [1901] NZGazLawRp 83; (1901) 20 NZLR 463; R v Marshall [1941] NZLR 361).
8. The Criminal Justice Act 1985 (NZ) section 6 does not appear to address the question but dos deal with the special circumstances of the offending (see generally Hall on Sentencing D92 – D94).
9. In this case the assessors were not asked to consider the occurrence or non occurrence of a third act of rape and the evidence on that point will be ignored and is irrelevant in this sentencing process.
10. The further threat to life and the threatened use of force are relevant aggravating matters to the crime of abduction and will be taken into account. They are subsumed into the nature and form of the abduction.
11. Consistent with the verdict returned by the assessors the Court makes the following general findings:
    • (1) The defendant went to the school music event intending to meet the complainant. He used the presence of T (the child) as a means of persuading the complainant to follow him. This was done by placing the child in a taxi;
    • (2) On a number of occasions he used promises that members of his family would return the complainant to her home;
    • (3) He used a mobile phone to persuade the complainant’s family that she and the child were safe and voluntarily absent;
    • (4) He used force, threats and the presence of the child to prevent escape and/or detention of the complainant;
    • (5) He lied to a member of the complainant’s family that neither she or the child were present at the fale;
    • (6) He left the child alone in the fale as he took the complainant to another place;
    • (7) He used physical force in two acts of rape; and
    • (8) The events were prolonged.
12. In Peti Key v Police CA 07/13 the Court of Appeal approved the more detailed band sentencing regime in categories of rape in accordance with the guidelines stated in R v AM [2010] NZCA 114; [2010] 2 NZLR 750 and consistent with decisions of the Samoan Courts in Luamanuvae [2012] WSSC 4; Sione [2011] WSSC 128 and Filipo [2011] WSSC 127.
13. In Filipo (supra) this Court considered decisions of the English, New Zealand, Australian and American cases and this Court repeats what it stated and concluded in that decision. It applied the New Zealand Band approach. It accepted as a commencing point a 12 year period but imposed an actual sentence of 18 years because of matters of aggravation.
14. The Court regards the circumstances of this case as coming within the rape of Band 3, namely a commencing point of between 14 – 20 years imprisonment.
15. The prosecution suggests that the appropriate band as being within that band but with an uplift for matters of aggravation.
16. The prosecution relied on cases such as Tinifu (7 May 2012), Pauesi (9 May 2008) – rape and abductions, with four years and Laifa (22 October 2012) – 4 years, in support of its submissions in relation to abduction. Here they seek a commencing point of four years for the crime of abduction in accordance with Laifa (supra).
17. The problem is that the prosecution in its written submission sought to submit:
    • (a) the abduction should be regarded as a matter relevant to the fixing of the band sentencing model; and
    • (b) Cumulatively in its own right.
18. If the abduction is a factor which takes the matter into a higher band then a Court would find it difficult to reuse the same factor in a different charge. An appropriate response is to follow the approval of Nelson J in Laifa (supra) and impose a concurrent sentence. The prosecution accepted, during the sentencing hearing that this would be an appropriate method.
19. Here the abduction included the taking of a small child although no separate charge was laid in relation to that taking and the child was recovered by police before the escape of the complainant.
20. The prosecution submits the appropriate commencing points to be:

Rape – 15 years imprisonment uplifted by 2 years because of aggravation;

Abduction – 4 years imprisonment;

Threat to Kill – 2 months imprisonment;

Assault – 2 months imprisonment.

21. The total amounts to twenty-one years and four months.

Totality

22. In sentencing for multiple crimes arising out of the same circumstances or events the Court is required to have regard to the principle of totality. In his treatise Principles of Sentencing (2 Ed), Thomas stated the principle as:

“The effect of the totality principle is to require a sentence who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’”.

23. The High Court of Australia applied that principle in Mill v R [1988] HCA 70; (1988) 166 CLR 59 and in the subsequent cases of Griffiths [1989] HCA 39; (1989) 167 CLR 372, and in doing so referred to the similar approach taken in New Zealand stating at 372:

“It is well established that in sentencing a person in respect of multiple offences regard must be had to the total effect of the sentence on the offender: Smith (1983) 32 SASR 219, at pp 220, 221, 222; Boyle and Allen, Sentencing Law and Practice, (1985), p 282; Hall, Sentencing in New Zealand, (1987), pp 195.”

24. The principle will be taken into account in this case.

General Principles

25. This Court has applied the ‘band’ method developed by the New Zealand Courts in Police v Sione [2011] WSSC 128 and Police v Filipo [2011] WSSC 127 and Police v Luamanuvae [2012] WSSC 4. Those cases applied the ‘Taueki’ methodology and in particular the detailed exposition by the New Zealand Court of Appeal in R v AM [2010] NZCA 114; [2010] 2 NZLR 750. The Samoan Court of Appeal in Key v Police CA 07/13 specifically required the application of R v AM (supra) whilst allowing for some flexibility depending on special circumstances of the events or mitigation.
26. In Key (supra) the Court adopted the bands as:

“(a) Rape Band One 8 – 10 years

(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.

(d) Rape Band Four 19 years to life

As well as the aggravation features in Band 3 it is likely to consist of multiple offending over considerable time. Repeat family offending would fall into this band.”

Victim Impact Report

27. The complainant suffered from a cut to her lips and a swollen face as a result of the force used in her detention. He felt pain during the acts of rape. The psychological effects are said to be:

“The victim provides that this was a first time experienced (sic) for her and she was really scared during the whole ordeal especially when the defendant assaulted her.

The victim states that she suffered psychological trauma because of the incident. She tends to think a lot abut the incident and it brings bad memories to her.

The victim shows discontent towards the defendant and she does not want to see him again.

The victim provides that not only herself that she has suffered embarrassment ever since the incident occurred but her whole family as well. This is because the defendant goes to church together with her and her parents are also the church ministers.”

Apology

28. The defendant’s family offered an apology to the complainant’s family who replied that they would leave the matter with the law. On another occasion the defendant attempted to speak with the family but was told to go away before entering the fale. The complainant’s family has not formally accepted the apology.

Previous Convictions

29. Fiaputa has a previous conviction for theft and punished on 25 January 2006. There has been no record of violence, and that conviction will be ignored. The pre-sentence report states that in addition he was convicted and sentenced to twelve months for supervision and ordered to serve 120 hours of community work on 29 April 2013 on charges of theft and burglary. That conviction is relevant only as to general character. In any event the Court of Appeal stated in Key (supra) that a commencing point should not include consideration that a defendant is a first offender.

Pre-Sentence Report

30. Fiaputa is aged twenty-nine. He has assisted by family and is said by his mother to be responsible, hard-working and respectful. He is married and lives with his mother, wife and siblings.

Commencing Point

31. There were two acts of rape, abduction and detention, and violence was used on the victim. The Court will accept as a commencing point of sixteen years. There had been premeditation, violence and prolonged detention which when taken into account requires an actual sentence of eighteen years which is at the higher point of Band 3 as stated in Key (supra).
32. Given the abduction is an aggravating matter, the sentence will reflect that element in the primary sentence and following the approach taken by Nelson J (supra), the separate crimes of abduction, threatening to commit bodily harm and assault will be made concurrent. That will also take into account the principle of totality.

Mitigation

33. The Court was told by counsel that the defendant is remorseful for his conduct. Counsel for the defendant submitted that the complainant had in general terms agreed generally with elopement, pregnancy and marriage. The assessors’ verdict is a finding that she did not consent to elopement in December 2011. She agreed during cross-examination that she had said to the defendant, at some stage during the initial relationship that the only way her parents would accept the defendant was if she ran away and got pregnant. She explained in re-examination that she used the words meaning that at no stage in the future could marriage be even considered under those circumstances. The Court accepts her explanation that she was pointing out the futility of a long term relationship ending in marriage. That finding is consistent with the verdict of the assessors.
34. The Court accepts the principles of rehabilitation and the effects of prison. The circumstances require a sentence within the upper range of Band 3. A commencing point of sixteen years will be increased to eighteen years.

Time Served

35. An allowance will be made for time served. He is entitled to the benefit of five months and two weeks time already spent in custody.
36. The appropriate sentence to be served is eighteen years imprisonment with allowance made for the time served.

ORDERS:

(1) Paneta Fiaputa be convicted of the crimes of rape, abduction, assault and threatening language.
(2) Paneta Fiaputa be sentenced to a term of imprisonment for a period of 17 years, 6 months and 1 week in respect of the crime of rape. For the purpose of parole calculation the sentence is that of 18 years to commence as and from 7 February 2013.
(3) Paneta Fiaputa be sentenced to a term of imprisonment for 3 years for the crime of abduction, such sentence to be concurrent with that stated in Order 2.
(4) Paneta Fiaputa be sentenced to a term of imprisonment for 2 months for the crime of assault, such sentence to be concurrent with that stated in Order 2.
(5) Paneta Fiaputa be sentenced to a term of imprisonment for 2 months for the crime of threat to kill, such sentence to be concurrent with that stated in Order 2.
(6) The names of the complainant, her family and village are suppressed.

..............................

(JUSTICE SLICER)