Police v Leasuasu [2007] WSSC 56 (23 July 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

LUA LEASUASU
male of Fugalei and Saleimoa
Accused

Counsel: L M Su'a for prosecution
Accused in person

Sentence: 23 July 2007

SENTENCE

The charges

The accused appears for sentence on one count of attempted rape which carries a maximum penalty of 10 years imprisonment, one count of robbery which carries a maximum penalty of 10 years imprisonment, and one count of indecent assault under s.54(a) of the Crimes Ordinance 1961 which carries a maximum penalty of 5 years imprisonment. To all three counts the accused pleaded guilty at the earliest opportunity.

The offending

The victim is a 51 year old female from Italy but presently residing at Lotopa. On Sunday morning, 29 April 2007, at around 6:45am she went for a walk along the seawall in Apia as she often does. When she came behind the Government Building at Matagialalua, she crossed paths with the accused who was walking in the opposite direction. The accused then all of a sudden wrapped his left arm around the victim's neck, stuck a machete to the ribs on her right side, and said: "Give me the money, give me the money or I will kill you."

The victim showed the accused her pockets and told him she had no money. The accused then told the victim to take off her wrist watch and while she did so, he pulled the watch off from her wrist. The accused then sat the victim down on the steps of the seawall and said to her "I want to fuck you and eat your pussy" before placing the machete to her neck. The accused then lifted the victim's shirt and bra and sucked her breasts. In all that time the victim was shaking and crying from fear.

The accused then unzipped the victim's pants, reached into her panties and inserted his two fingers in her vagina. After the accused withdrew his fingers, he opened his pants and pulled out his penis. The accused then placed the victim's hand on his penis and said "eat my cock." The victim told the accused that she cannot but because of his persistency she touched his penis for about two minutes before the accused said "I want to fuck."

The accused then held the victim's hand and led her to the trees by the water. However, a woman approaching them called out to the victim if she was alright. The accused told the victim to say she was alright and she did so. When the woman left, they carried on to the water behind the Government Building where the accused persistently asked the victim to have sexual intercourse with him. They then sat down on a bench where the victim after much persuasion convinced the accused not to have sexual intercourse with her at that time. She did so by reasoning with him that they were in a public place and by giving him her phone number to contact her later and then they will have sexual intercourse. The accused then left the victim who immediately contacted the police. The police subsequently found the accused in a food stall at the Fugalei Market the same morning and retrieved the victim's wrist watch.

The accused

The accused, according to the summary of facts, is a 26 year old male of Fugalei and Saleimoa. His unconfirmed date of birth as shown from the pre-sentence report was 13 October 1980. Since 2 March 1990, when the accused must have been 9 years old, he has been in and out of prison for most of the time. It would appear the accused has spent more time in prison than out of it during the last 16-17 years.

The accused's previous conviction cards show that the accused has had about 25 previous convictions for burglary, 2 previous convictions for attempted burglary, and 23 previous convictions for theft which are mostly associated with the burglary convictions. There are previous convictions for other types of offences including possession of marijuana. When the accused committed the offences for which he is now appearing for sentence, he was serving a prison sentence for other offences but was apparently out on week-end parole.

As it appears from the pre-sentence report, the accused's sister told the probation service that since the death of their mother the accused has never been the same. The migration of their father to New Zealand in 1992 after the death of their mother apparently did not help matters. The acucsed's sister also told the probation service that her brother is addicted to marijuana and hangs around with the wrong crowd which has affected his life.

It would seem from the accused's family background and record of previous convictions that he has become a significant and on-going risk to other members of the community. There also appears to be a high risk of the accused re-offending.

The victim

As mentioned earlier, the victim is a 51 year old female from Italy. She is presently residing at Lotopa. She has been greatly affected psychologically as a result of the actions committed by the accused. The victim impact report shows that as a result of the accused's actions:

(1) The victim was unable to stay by herself at her home for the following three weeks and had to have a friend to stay with her. After that three weeks, the victim stayed in a hotel for a while because she was still unable to stay by herself in her own house.

(2) The victim no longer feels safe in her own house for fear of being attacked.

(3) The victim can no longer stay out after 9pm at night whereas before she can stay out until 11pm and go home feeling safe.

(4) When the victim drives her car at night, she now has to lock her door and wind up all the windows of her car as she has developed a sense of paranoia.

(5) Before this incident the victim was never used to locking her bedroom door but now she does so out of fear for her safety. She now also sleeps with her lights on and keeps a small knife beside her bed to make her feel safe in case she gets attacked.

(6) The victim now feels unsafe on Beach Road particularly at night and knows that she cannot walk alone by herself anymore.

(7) Before this incident, the accused used to feel free and safe to roam the streets but now she cannot do so without fearing for her life.

(8) Since this incident, the victim has become reserved of the Samoan people and wonders why she was attacked and why palagis in particular are targeted.

(9) When a man now looks strongly at the victim she becomes frantically anxious.

(10) Before this incident the victim used to enjoy taking her morning walk on the seawall in Apia but now she no longer walks alone especially on Sunday morning.

Aggravating features

The overall circumstances of the accused's offending contemporaneously gave rise to three different offences as correctly recognised by the prosecution by laying three separate charges for attempted rape, robbery, and indecent assault. The aggravating features are the threats of violence (including a threat to kill) accompanied by the accused holding a machete to the victim, the extensive psychological impact of the accused's actions upon the victim, and the accused's considerable relevant previous convictions for burglary, attempted burglary and theft. This was also a terrifying ordeal for the victim who was shaking and crying from fear at the of this incident. It is also of real concern to the Court that this is the third case of robbery that has occurred on the seawall in Apia in the recent past. In all these cases the victims have been foreigners and that is not a good reflection on this country.

Given the record of the accused's previous convictions, it is clear that he is a significant and on-going risk to other members of the community. There is also a high risk of the accused re-offending.

Mitigating features

Except for the accused's plea of guilty at the earliest opportunity, there is no other mitigating feature.

The decision

The seriousness of this case would be seen by taking an overall assessment of the total offending. Considering each count on its own, it will not be as serious as other cases of the same type which have come before this Court in the past. It is when the total offending is viewed overall that the real gravity of this offending becomes obvious.

Sentencing in criminal cases has several purposes. The primary purpose is the protection of society. Other purposes are (a) the deterrence of the particular offender from re-offending, (b) the deterrence of others who might be tempted to commit the same or similar offences (c) retribution, and (d) rehabilitation. The difficulty that often arises is how to achieve a suitable balance between these various purposes in a particular case.

In this case, I give hardly any weight at all to rehabilitation given the past record of the accused. As I have earlier said, the accused's past record shows that he is a significant and on-going risk to other members of the community and there is also a high risk of him re-offending. This is sad given the brief family background of the accused placed before the Court, but the Court has to bear in mind the protection of the community. A deterrent sentence is called for.

In determining what should be the appropriate sentence, I have to bear in mind that in cases of multiple offences the sentence must be appropriate to the total gravity of the offending. This is more so in this case where all three counts arose from the same incident and there is an overlap between the circumstances which constitute each count.

With those considerations in mind, the accused is sentenced to 5 years imprisonment for attempted rape, 3 years for robbery, and 2 years for indecent assault. Applying the totality principle, the starting point for the total sentence should be 9 years imprisonment. I will give the accused a 2 years discount for his plea of guilty at the earliest opportunity. That leaves a total sentence of 7 years.

The accused is therefore sentenced to 7 years imprisonment.

CHIEF JUSTICE

Solicitors
Attorney General's Office, Apia for prosecution