Police v Leilua [2008] WSSC 47 (17 July 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

TOMA LEILUA
male of Afiamalu.
Accused

Counsel: A Lesa for prosecution
M V Peteru for accused

Sentence: 17 July 2008

SENTENCE BY SAPOLU CJ

1. The accused, a 32 year old male of Afiamalu and Sagone, appears for sentence on the charge of attempted rape which carries a maximum penalty of 10 years imprisonment and the charge of common assault which carries a maximum penalty of 12 months imprisonment. To both charges he pleaded not guilty but after a defended hearing he was found guilty of both charges.
   
2. As it appears from the evidence that was adduced during the trial, the complainant, who is a 28 year old Fijian national, her husband, and some of their work colleagues, had a get together at the RSA nightclub in Apia about 5pm in the afternoon on 4 May, 2006.
   
3. Sometime after 10pm at night the complainant and her husband had an argument and the complainant left the nightclub and walked across the road towards the ACB building where she waited for one of her female colleagues who was inside the nightclub.
   
4. When it took too long for the complainant’s colleague to come out of the nightclub, the complainant walked down between the ACB building and the Gold Star building to catch a taxi.
   
5. The complainant was very drunk at the time and could not remember everything that happened. However, the evidence given by the other witnesses in this case shows that the complainant walked back to the front of the ACB building and across the road to the front of the RSA nightclub where the nightclub’s security and other men were standing and talking. That was after midnight and the nightclub had closed. She then went to sleep on the shoulder of one of the men whilst she was still standing.
   
6. The RSA security who is a distant relative of the complainant’s husband then started to look for a taxi to take the complainant home. At that time, the accused came over from across the road and said to let the girl go with him as he knows her well and is acquainted with her. This was false as the accused had not met the complainant before that night and he was not acquainted with her.
   
7. The RSA security and the other men with him then let the accused take the complainant with him across the road towards the ACB building. At that time, the complainant could hardly walk as she was very drunk and apparently fatigued. According to the evidence of the RSA security, when the accused and the complainant reached the other side of the road, he saw the accused carrying the complainant on his shoulder. The ACB security who saw the accused and the complainant at that time testified that he saw the complainant trying to resist the accused as she was being carried on his shoulder.
   
8. The accused, however, continued to carry the complainant to the elevators on the ground floor of the ACB building. In spite of a call to the accused from the security of the ACB building as to where he was taking the girl, he still pressed the button to the elevators and then entered one of the elevators still carrying the complainant on his shoulder.
   
9. The accused then carried the complainant in the elevator to the carpark on the first floor of the ACB building. The carpark had no lights on and it was dark. The accused must have been familiar with the elevators and carpark of the ACB building as he was at that time working in one of the shops on the ground floor of the ACB building.
   
10. At the carpark, the accused hit the complainant on the face and she fell down. The accused then got on top of her as she was lying down. He then held the complainant’s hands together onto her chest with one of his hands whilst his other hand was going towards his pants. When the complainant tried to get up, he hit her again on the face. However, the complainant continued to struggle until she managed to hit him between the legs. That enabled the complainant to get up and ran away from the accused.
    
11. She ran as fast as she could. She tripped over something but she got up again and continued to run as fast as she could to the end of the carpark railing where she could see light. She started crying and calling out for help. She also called out her husband’s name hoping that he would hear her.
    
12. A woman who lives in the building next to the ACB building heard the complainant’s call for help and came out with her children.
    
13. The RSA security who had a short time earlier saw the accused carrying the complainant soon afterwards followed to find out where the accused was taking her. When he met up with the ACB security, he inquired about the accused and the complainant. They then went up to the carpark where they found the complainant crying and calling out for help and running around. The accused was nowhere to be seen.
    
14. The woman who heard the complainant and came out to help her then arrived with her children and took the complainant to their house.
    
15. It is clear that the accused intended to rape the complainant and did attempt to rape her. He misled the RSA security and others who were trying to help the complainant and took advantage of the complainant’s drunken condition. The resistance from the complainant which must have been weak because of her condition did not make the accused put the complainant down from his shoulder. He also took no notice of the call from the ACB security as to where he was taking the girl but just took the complainant into one of the ACB elevators and up to the ACB carpark.
    
16. He then used violence upon the complainant. He hit her on the face which caused her to fall down. He then got on top of the complainant and hit her on the face again. This must have been quite a terrifying experience for the complainant who is a foreigner in this country.
    
17. It was fortunate for the complainant that she was able to pull together sufficient strength, in spite of her drunken condition, to resist the accused until she had the opportunity to hit him between the legs which enabled her to get up and ran away. If that had not happened, the accused would have raped the complainant. However, it must have been difficult for her to pull together sufficient strength given that she was very drunk and fatigue.
    
18. Since this incident, the accused has also shown no remorse for his actions. He did not voluntarily surrender himself to the police. In fact the police had to carry out an investigation to find out who was the offender. When the accused was apprehended and questioned by the police he denied that he attempted to rape the complainant. When he was charged by the police with attempted rape and common assault he pleaded not guilty. At the trial he denied the evidence given by the complainant. He said his purpose in taking the complainant to the ACB carpark was merely to put her to sleep in the room of the ACB securities because she was drunk. However, when he put her down at the carpark, she screamed. So he left her and went away. After the accused was found guilty and was interviewed by the probation service for the preparation of a pre-sentence report, he still denied to the probation service that he did not attempt to rape the complainant.
    
19. Even though counsel for the accused in her plea in mitigation said that the accused now accepts the decision of the Court, I do not accept that the accused is genuinely remorseful.
    
20. When the accused was also asked by the probation service whether there had been a reconciliation of this matter with the complainant, he said no because he had been ordered by the Court not to make any contact with the complainant. This must be in relation to one of the bail conditions imposed by the Court when this case was first called for mention. However, it is clear that the true reason why there has been no reconciliation is because up to the time the accused was interviewed by the probation service he was still denying that he attempted to rape the complainant. Furthermore, the accused’s family could have performed a formal apology or reconciliation with the complainant without the accused being present.
    
21. Even though there was some element of pre-meditation involved in the commission of the present offences by the accused, I think these offences are more a crime of opportunity. The accused must have noticed the complainant’s very drunken condition very late at night with only a few men around and decided to take advantage of the opportunity presented by the circumstances to have sex with the complainant without any regard as to whether she consented or not.
    
22. The only mitigating factor in this case is that the accused is a first sexual offender as it appears from the sentencing memorandum provided by the prosecution and defence counsel’s plea in mitigation. There is no other mitigating factor.
    
23. In passing sentence, one of the considerations to be taken into account is the need for deterrence in this type of case in order to safeguard the community from the sort of criminal conduct committed by the accused.
    
24. I will take 7 years as the starting point for sentence as submitted by counsel for the prosecution. I deduct 6 months for the fact that the accused is a first offender. That leaves 6½ years. Even though this is a serious case of attempted rape, it is not within the ‘worst case’ category. I will show mercy on the accused on that basis and deduct another 4 months. That leaves 6 years and 2 months. The accused is sentenced to 6 years and 2 months imprisonment.
    
25. On the charge of common assault, the accused is sentenced to 6 months imprisonment.
    
26. Both sentences to be concurrent.
    

CHIEF JUSTICE

Solicitors
Attorney-General’s Office, Apia, for prosecution
M V Peteru Law firm, Apia, for accused