Pulu v Police [2003] WSCA 2 (21 November 2003)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

IN THE MATTER of the Judicature Ordinance 1961

AND

IN THE MATTER of an appeal
pursuant to Section 164K of the Criminal Procedure Act 1972.

BETWEEN

TANIELU PULU
of Vaipuna and Tafaigata Prison.
Appellant

AND

THE POLICE
Respondent

Coram: The Rt Hon Lord Cooke of Thorndon
The Rt Hon Sir Gordon Bisson
The Hon Justice AAT Ellis

Counsel: Mr FA Ropati for appellant
Mr R Schuster and Mrs A Faasau for respondent

Hearing: 18 November 2003

Judgment: 21 November 2003

JUDGMENT OF THE COURT
DELIVERED BY LORD COOKE OF THORNDON

The victim in this case of attempted rape, which comes before the Court on sentence only, was a Peace Corps Volunteer from the United States of America, aged 26, living alone in a flat in the Vaiala area of Apia. On the day following the incident she gave an account to the police, the important parts of which are as follows:

On March 8, 2003 I was reading a book in my upstairs flat in the Vaiala area of Apia. At 10:25PM, I heard dogs (belonging to my downstairs neighbours) barking loudly. A few seconds later, I heard a light knocking at the door. I became suspicious and hid from view of the front door. The barking of the dogs and the knocking at this late hour alerted me to the fact that it was not someone that I knew. If it were, they would have called my name. I attempted to call the police, and two other Peace Corps Volunteers before I finally got through to the police and described the situation.

A few minutes later, I heard that screen was being ripped and velours to the window closest to the door were being removed. When I realized that this individual had successfully entered my flat, I began to repeatedly scream in Samoan for him to go away and that I had already called the police. I saw him walk around the hallway and as he approached me, I began to scream more and more. The perpetrator was a Samoan male in his mid-twenties. He approached me with a purple towel of mine that was on the back porch, over his head. He was approximately 5’5" in height and weighed 145 lbs. He was thin, but muscular. He had short, black hair and a rather dark complexion. I also noticed that he had a Samoan armband tattoo.

When he came towards me and immediately attempted to remove my lavalava. I hit him. He then removed my lavalava and twice touched my genitals. I began to scream hysterically and swung at him again, while attempting to push him back out of my house. He attempted to remove my t-shirt. I continued to struggle and scream, while pushing him out. Eventually we were in the main doorway. He punched me in the face. I attempted to hit him again. He then attempted to push me off of the balcony. I struggled and he punched me several times in the face and head area. I then attempted to push him off of the balcony. Then I ran inside the house and locked the door.

......

I sustained a cut in the middle of my forehead, extensive bruising on the ride side of my face and eye, bruising on the left side of my face, bruising on my right elbow, bruising on my upper chest area, bruising on my left arm and bruising and cut to my right hip.

There is no reason to reject that account. The defendant, her assailant, had been drinking since taking part in a rugby match in the afternoon and was undoubtedly under the influence of alcohol, as confirmed by the statement of a witness who saw and talked with him shortly before the incident. The defendant claims that he was too drunk to remember having physically and sexually assaulted the victim; but after some changes of plea he finally pleaded guilty, on legal advice, to attempted rape. He has given two versions of what happened. On the morning after, he told the police (in translation):

Answer 37 I walked around and I was tempted by the devil, then I remembered the two homosexual men that we slept at the house of Makerita two weeks ago.

Question 38 What do you mean that you were tempted by the devil?

Answer 38 I remembered indecency that we did with the homosexual men.

Question 39 Then what?

Answer 39 Then I went to Makerita’s house upstairs to see if the said homosexual men were there.

Question 40 Was there a light on?

Answer 40 No.

Question 41 How did you get inside the house?

Answer 41 I removed louvre blades and went inside.

Question 42 Was there anyone inside the house?

Answer 42 Yes.

Question 43 Who was it?

Answer 43 A European girl.

Question 44 Have seen this European girl before?

Answer No.

Question 45 What did you do inside the house?

Answer 45 The girl came and pulled my clothes.

Question 46 Were you clothes still on at that time?

Answer 46 I cannot recall whether I wore it or put is around my neck.

Question 47 Then what?

Answer 47 I then pushed her behind and she fell backwards, then she screamed she wanted to live.

Question 48 Did she say in Samoan that she wanted to live?

Answer 48 No, she said, "Help me".

Question 49 How many times the girl screamed?

Answer 49 Two times.

Question 50 Did anyone come over at that time?

Answer 50 I did not know if anyone came over but I just left and went home.

Question 51 Look at this t-shirt if it is yours?

Answer 51 Yes, that is my attire.

Question 52 What colour is this attire?

Answer 52 It is yellow with blue stripes.

Question 53 Is there anything else you want to ask or say about this matter?

Answer 53 No, I just want to apologise of the wrong I have done as I was excited of our games and I was tempted by the devil.

But the version put forward in his counsel’s written submissions in this Court was that the defendant ripped the screen, removed some louvres and went inside; he saw a bottle of Jim Beam and a wallet on a table and as he was about to grab these a Palagi woman screamed and grabbed his shoulder and side, and he turned around and pushed her. He gave a similar account to the probation officer. In the circumstances it is obvious that no reliance can be placed on the defendant’s versions.

On 21 July 2003 Chief Justice Sapolu sentenced the defendant to 6½ years imprisonment, stressing that it was fortunate that the victim proved physically strong enough to protect herself and that the defendant did not try to run away but persisted in what he was trying to do to the victim. He had delivered a number of punches, and the Chief Justice considered the injuries and the degree of violence as serious aggravating factors. The Chief Justice did not overlook that the defendant was a first offender and had pleaded guilty.

The defendant now seeks to appeal against the sentence. There are some procedural irregularities. In particular it was not until 10 November 2003 that the respondent was served with any notice of an appeal, while the record was not lodged within six weeks but 11 weeks and five days after the filing of an unserved notice of appeal. The relevant rules are discussed in the contemporaneous judgment of this Court in Police v Sale Mareko Tuai. We do not go into detail here, as where a would-be appellant is serving imprisonment we think that the power of waiver conferred by Rule 38 of the Judicature Ordinance Court of Appeal Rules 1961 can and should in this case, in the absence of good reasons to the contrary, be exercised if the substantive grounds of appeal have merit.

On turning to the merits, however, we are not satisfied that there are any grounds for interfering with the Chief Justice’s sentencing discretion. It is true that the defendant has a reasonably favourable probation report. Moreover the 6½ years appears to be longer than the terms for attempted rape that have been usual in Samoa. Nevertheless we consider that an altogether wrong message would be conveyed to this country and overseas if this Court were to reduce this sentence which the Chief Justice clearly thought necessary for reasons of the protection of potential victims and the deterrence of like crimes.

The defendant’s applications for leave to appeal and for waiver of time requirements are accordingly dismissed. The sentence will stand.