Police v Tuifao [2012] WSSC 6 (6 March 2012)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU'U

BETWEEN:

POLICE
Prosecution

AND:

KALOLO TUIFAO male of Faleula
Accused

Counsel: T Toailoa for prosecution
A Su'a for accused

Sentence: 6 March 2012

SENTENCE

1. The accused Kalolo Tuifao who is a male from the village of Faleula appears for sentence on the charge of attempted rape on which he was found guilty after trial.
   
2. The evidence that was adduced at trial shows that on Saturday afternoon, 21 August 2010, the accused had been in Apia and Vaitele where he drank three large bottles of beer before he returned to his village of Faleula. At Faleula–tai he met with the complainant who was selling tomatoes. He told the complainant that he wanted to buy all of her three packets of tomatoes but they had to go to a shop to get the money. The accused then walked up the tar-sealed road to Faleula-uta and the complainant followed with her tomatoes. When they came to a foot-track on the side of the road at Faleula-uta, the accused turned into the foot-track which goes through a plantation of bananas and taamus. When they came to a breadfruit tree about 102 metres form the road, the accused stopped. He then held the complainant's hands, removed her clothes and sucked her breasts. He then sat the complainant down and sucked her private part. When the complainant objected to what the accused was doing, he threatened to kill her if screams. The accused then removed his clothes and put his private part to the complainant's mouth. She told him no. The accused then rubbed his private part on the complainant's private part but she pushed it off. He again threatened the complainant. The accused then inserted his fingers inside the complainant's private part. She screamed and ran off naked to the road where she was seen by a woman crying and putting on her clothes.
   
3. The complainant is now 17 years old but was 16 at the time of this offence. She must have suffered great emotional trauma at the time of this offence. As a result of this offence, she could not go to school for a week. However, she says in the victim impact report that she has moved on from what happened and it does not weigh heavily on her mind anymore.
   
4. The accused is now 41 years old but was 40 at the time of this offence. He has a de facto wife. It appears from his pre-sentence report that he is still denying this offence which shows lack of remorse. However, his family had performed a ifoga to the family of the complainant. The accused also has two previous convictions in 1997 and 2000 for offences of a different kind from the present offence. I will treat him as a first offender for present purposes.
   
5. There are several aggravating factors in this offending. The first is pre-meditation. The offending in this case was clearly pre-meditated. The accused misled the complainant into believing that he wanted to buy her tomatoes but they had to go inland to a shop to get the money. The accused's intention was undoubtedly to take the complainant to an isolated place inland of Faleula so he could have sex with her regardless of whether she consented or not. The aggravating factors are the threats by the accused to the complainant, the indecent acts committed by the accused, the emotional trauma suffered by the complainant, and the age difference of 24 years between the accused and the complainant. Furthermore, as a result of this offending, the complainant could not go to school for a whole week.
   
6. The mitigating factors relating to the accused are that he is a first sexual offender and that his family had performed a ifoga to the family of the complainant. However, I have to bear in mind that the accused is still denying the offence so that the ifoga is not truly a sign of remorse on the part of the accused.
   
7. Having regard to the maximum penalty of 10 years imprisonment for attempted rape and the aggravating factors relating to the offending, I will take 7 years as the starting point for sentence as proposed by counsel for the prosecution. I will deduct one year for the mitigating factors relating to the accused as the offender. That leaves 6 years.
   
8. The accused is convicted and sentenced to 6 years imprisonment. The time he has already spent in custody is to be deducted from that sentence.
   

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CHIEF JUSTICE

Solicitor
Attorney General's Office, Apia, for prosecution
Tamati Law Firm for accused