Police v Leo II [2010] WSSC 164 (1 December 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE.
Informant

AND:

MOTUTOA LEO II aka FETALAIGA MOTU LEO II aka NAMULAUULU VAVAE LEO II aka TUILAGI male of Fatausi.
Defendant

Counsel: F.Vaai for prosecution
M V R Peteru for defendant

Decision: 01 December 2010

SENTENCE

This defendant appears for sentence on a charge of attempted rape. If one has not already been issued, there will issue a suppression order prohibiting the publication of the details of the complainants name or any other factors that may identify her in this matter.

The offence of attempted rape carries a maximum penalty at law of 10 years in prison. The facts of this matter in the summary of facts which the defendant has accepted through his counsel states as follows: the victim is a 24 year old female and is the defendants niece. On the day in question the victim was at her uncles place at Letogo when the defendant arrived. The defendant was told by the victims aunty that the victim was looking for a job. The defendant told the victim that he has friends in town who may be willing to employ her and he offered to help her to find a job.

The two of them then came together in the defendant's vehicle into town and went to Vaitele uta and saw one of the defendants friends who runs a night club. The victim gave him her application for a job and she was asked to begin employment later that day in the evening. The couple then continued travelling in the defendants vehicle to various places including Aleisa, Faleatiu and Apolima and eventually ended up in an isolated area at Olo in Mulifanua where the offence is said to have taken place. During the journey the vehicle made several stops where the defendant made some purchases including alcohol which he consumed throughout the course of their journey. The summary of facts also states that he bought some food, plates, cutlery a pillow and a sheet.

At Olo in a deserted area the defendant stopped the car got out and walked over to the side where the victim was seated. The summary of facts states that he pulled her out of the car threw her on the ground and then pinned the victim down by sitting on her. He ripped her top off and reached down to the lower part of her body and tore her panty off. During all these the victim struggled to free herself and tried to scream but the defendant stopped her by punching her.

The summary of facts goes on to state that the defendant sucked the victims breasts and prodded her vagina with his fingers. At the same time the defendant attempted to pull aside his ie faitaga but was unable to do so.

The victim continued to struggle and eventually managed to escape. She ran away and the defendant got in his car, turned it around and followed but the victim hid in a bushy area to avoid being caught. After several attempts and not being able to find her the defendant then left the area.

The victim managed to find help from a nearby family whose house the summary of fact says is located 980km from where the incident occurred. But I do not think that can be right, I think that it is probably 980 m from where the incident occurred.

As a result of the assault the victim sustained injuries to her left eyebrow which was swollen and had an abrasion measuring 3cm. She also sustained injuries to her chest consisting of bruising on the upper and medial aspect of her breasts. These injuries were confirmed by a medical examination conducted on the victim shortly after the incident.

According to the victim impact report that has been filed with the court the victim's head was also swollen and there were other scratches on her breast and bruises on her shoulders. All these injuries are indicative of the use of violence by the defendant to subdue the victim. The victim impact report also details other effects this incident has had on the victim in relation to how she was treated by friends and family who quite wrongly blamed her for the incident. The report goes on to state that she feels relief the case is finished and the truth has been revealed and that this matter was a heavy burden to her and her family. Her distress at the incident was obvious at the trial when she gave evidence and recited what had occurred to her. Before she completed her evidence however the defendant quite properly changed his initial not guilty plea to guilty. And although he cannot receive full credit for his guilty plea in these circumstances I do take into account that he spared the complainant further distress. It is also relevant that the change of plea saved the courts time.

As far as the law and other sentences for this sort of case is concerned as stated earlier parliament has set 10 years as the maximum penalty for attempted rape. Because counsel for the defendant has argued for a non-custodial penalty I have reviewed the previous sentences of this court including those cited in the prosecution submission on cases of attempted rape. These show that while each case is to be treated differently because no two cases are the same and no two offenders are identical, the common factor in all of them is a sentence of imprisonment. As the court said in Police v Lemusu [2009] WSSC 98 "the seriousness of the charge calls for no other alternative". As my brother judge said in Police v Gasetoto [2008] WSSC 22 " the crime of rape and attempted rape are very serious offences for which a custodial sentence must always be considered." It has been stated time and time again that the sentence to be imposed in these type of offences is to protect our young females and to convey denunciation of such actions, 5 years was imposed in Lemusu and 4 years in Gasetoto. In the case of Police v Leilua [2008] WSSC 47, the Chief Justice in imposing a term of 6 years 2 months made the following statement:
"In passing sentence one of the consideration 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."

There is therefore no question that a custodial penalty is required in this case and is justified by the circumstances. Of the circumstances of the offending, the most relevant circumstances are firstly the fact that the defendant took advantage of his position as the complainants uncle and perhaps also the complainants naivety in accompanying him on such a journey ending up in such a secluded area, an area where according to the prosecution summary the nearest house was almost a 1000 m away, an area where the offending then took place.

The prosecution has suggested that taking that a 9 year starting point for sentence is appropriate. I do not agree because the maximum for this offence is 10 years. I believe an appropriate starting point is 5 years but there should be some adjustments made to that start point. These adjustments are because of the special aggravating factors peculiar to the defendant and the offending in this matter.

The main and most obvious one being the defendants relationship to the complainant being her uncle and no doubt therefore a trusted family member, a trust which he betrayed. For that the start point must be upgraded by 12 months to 6 years. An adjustment should also be made to reflect the degree of violence involved in the offending. But I note the violence in this case is not as severe as some; I therefore upgrade the penalty by a further 6 months to allow for that matter, making therefore a start point for sentence of 6½ years.

For the defendants first offender status, I agree with his counsel that his previous convictions are old and for unrelated offences and should not therefore be taken into consideration. For that first offender status and for the defendants obvious previous good character I make a deduction of 12 months and therefore reduce the penalty to 5½ years. For the traditional ifoga that was conducted by the defendants family while he was held in Police custody as indicated by the Probation report and for the defendants personal apology to the complainant which was alluded to by counsel for the defendant and has been again confirmed in the Probation report I deduct a further period of 6 months from the sentence. The greatest expression of the defendants remorse and regret is of course his guilty plea and which although entered late in this matter I will still allow a deduction. For that I make a further deduction of 6 months reducing the penalty to 4½ years.

A further fact that in my view which requires an adjustment to the penalty is the fact that it has been confirmed by the pulenuu of the defendants village and a letter attached to the Probation office pre-sentence report that the defendant in this matter was fined $10, 000.00. It is not clear whether the total fine of $10, 000.00 was paid but the pulenuu's letter states as follows;
"Sa matua faamalieina le matou nuu i le sala na tuuina mai o le tino i tupe na tuuina mai faapea le palapala o le malo o manufata tetele faapea le moega lafo na tatala ie toga tetele."

This indicates full satisfaction was received by the village in respect of the defendants penalty. It is proper and also in accord with the law of this country that some credit be given in respect of that penalty. I therefore allow a further 6 months deduction for that matter reducing the penalty to 4 years.

Much has been made in the material before the court of the defendants past history and achievements and they are no secret because the defendant is a well known person in our community. He is a former Member of Parliament, a former Deputy Speaker of that Parliament and before that was a Deputy Registrar of the Ministry of Courts. These and his other achievements are all outstanding and admirable and for which the defendant is to be congratulated. As many of us know he has fathered a number of sons many of whom have previously and currently are national reps in our beloved Manu Samoa who are future winners of the Rugby World Cup. But let us be clear about one thing, whether a person is or was a Member of Parliament, a Deputy Speaker or a Registrar of the court confers no licence on an individual to treat the law with disregard or impunity. And neither does it entitle an individual to any special treatment. No particular allowance therefore will be made in that regard other than the general deduction that has already been made for the defendants previous good character and good record.

Ona o mafuaaga lea ua tolaulau atu e le faamasinoga i le mataupu lenei e 4 tausaga o le a e nofo sala ai mo lenei solitulafono.

JUSTICE NELSON