Police v Tufuga [2009] WSSC 51 (29 May 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

SANELE TUFUGA male of Malie, Fogapoa and Fusi Savaii
Accused

Counsel: L Su’a - Mailo and R Titi for prosecution
Accused in person

Sentence: 29 May 2009

SENTENCE BY SAPOLU CJ

The charges

1. The accused appears for sentence on one charge of attempted rape and one charge of indecent assault to which he had pleaded not guilty but was found guilty after a one day trial.

The offending

2. The complainant in this matter is a 29 year old female from the village of Afega where she resides. The accused is a 29 year old male who, at the material time, was residing at the neighbouring village of Malie.

3. On the night of 23 July 2007 at about 8pm, the complainant came to Malie to meet her boyfriend. Instead she met the accused. She then talked with the accused and later asked him if he knows her boyfriend. The accused replied her boyfriend was at the house of his uncle. He then said to the complainant that he will take her to the house where her boyfriend was. That was about 9pm at night.

4. The accused and the complainant then took a dirt road which goes inland at the village of Malie. After walking inland for quite a distance, the complainant asked the accused as to where was the house of her boyfriend’s uncle. The accused replied it was only a short distance before they got to it. The complainant asked the same question again but the accused gave an evasive answer. The complainant then said it was best for them to go back but the accused replied no and insisted that they continued walking.

5. When the complainant insisted that they went back, the accused embraced and held her with both hands. He told the complainant there was something he wanted but the complainant refused. They then struggled until the accused was able to push down the complainant. She fell on her back onto the road facing upwards. At the same time the accused laid on top of her.

6. The complainant testified that the accused told her not to make any noise but she screamed the whole time that she wanted to live. He then strangled her neck and tried to kiss her. During all that time, according to the complainant, she was still struggling and screaming. However, the accused was able to insert his fingers inside her private part.

7. Fortunately for the complainant, two men who live in nearby houses and had heard the complainant’s screams came onto the scene at that time with a torch. Upon seeing what was coming, the accused let go of the complainant and fled. One of the two men gave chase but the accused was too fast.

8. The next day the complainant was examined by a female doctor at the National Hospital. The doctor found multiple dark red scratches on the complainant’s face and outer part of her right leg. There were four scratches around the complainant’s nose and mouth each about ½ cm in length and six scratch marks on her right leg ranging from 2cm to 6cm in length.

9. There was also tenderness with soft touch on the complainant’s neck, jaw and on her right thigh.

10. In the caution statement the accused gave to the police, he admitted that he wanted to have sexual intercourse with the complainant and so tried to force her to have sexual intercourse with him.

11. The accused elected not to give or call evidence.

The accused

12. The accused is no stranger to the Courts. He has been in and out of prison since 2002. He has previous convictions for theft, causing actual bodily harm, arson, assault and uttering insulting words. He is currently serving a sentence of 9 months imprisonment for causing actual bodily.

13. As it is shown from the pre-sentence report, the accused showed no sign of remorse at time he was interviewed by the probation service.
The complainant

14. There is no report on the complainant and the impact the offending has had on her. But there is no doubt that complicated was both physically and psychologically affected by what the accused did to her.

Aggravating factors

15. There are several aggravating factors in this case. The actions by the accused were clearly premeditated. They were also deceitful as there is no evidence to suggest that the accused actually knew that the complainant’s boyfriend was at his uncle’s house. The accused misled the complainant into a situation where he would have succeeded in raping her if it was not for the timely intervention of two men who heard the screams from the complainant.

16. Other aggravating factors are the force and violence that was used by the accused, the physical injuries sustained by the complainant, and the fear and emotional distress that the complainant must have gone through as the accused was trying to have sexual intercourse with her without her consent.

17. The accused also has several previous convictions and has showed no sign of remorse as it appears from the pre-sentence report.

Mitigating factors

18. There is no mitigating factor.

The decision

19. Taking into consideration the aggravating factors relating to the offending, I will take 5½ years as starting point for sentence on the charge of attempted rape. Having regard to the aggravating factors relating to the accused, namely, his previous convictions, I will add on another 6 months. That makes a total of 6 years.

20. The accused is convicted and sentenced to 6 years imprisonment on the charge of attempted rape. On the charge of indecent assault, the accused is sentenced to 3 years imprisonment. Both sentences to be concurrent. So the accused will serve only 6 years imprisonment.

21. That sentence is to commerce at the expiry of the accused’s present sentence of 9 months imprisonment which will expire on 27 August 2009.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution