Police v Laifa [2012] WSSC 96 (22 October 2012)

SUPREME COURT OF SAMOA

Police v Laifa [2012] WSSC 96

Case name: Police v Laifa

Citation: [2012] WSSC 96

Decision date: 22 Oct 2012

Parties:
THE POLICE v TOLO aka KOROSETA LAIFA male of Vaitele-fou and Iva Savaii

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Nelson J

On appeal from:

Order:

Representation:
Ms L Taimalelagi for prosecution
Mr A Roma for defendant

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:
Police v Tolutasi (23 April 2012)
Police v Filipo [2011] WSSC 127

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

THE POLICE
Prosecution

AND

TOLO aka KOROSETA LAIFA male of Vaitele-fou and Iva Savaii.
Defendant

Counsel: Ms L Taimalelagi for prosecution
Mr A Roma for defendant

Sentence: 22 Oct 2012

SENTENCE

Having dismissed the defendants application to vacate his guilty pleas (see court ruling dated 21 September) the defendant now appears for sentence on charges of rape and abduction. Charges to which he had pleaded guilty when represented by his previous counsel Mr Ainuu.

The defendant is a 30 year old male of Iva in Savaii married with four children. He is now separated from his wife because of this offending. In fact the probation report relates that he refused to provide the probation office with directions to his familys whereabouts in Savaii because he does not want them to be further hurt or embarrassed by his offending. I commend the defendant for that, that is the one good thing he has done for his family in respect of this matter. It also shows that he is at least prepared to take personal responsibility for his offending.

The police summary of facts states that on the night of Friday, 22 July last year the complainant and the defendant were part of a drinking party at the Mulinuu Peninsula just down the road. The defendant was a friend of the complainants boyfriend. The complainants boyfriend was also at the party. The party disbursed around mid-night and everyone went home, the complainant and boyfriend in the defendants taxi.

The following day Saturday, 23rd July the complainant found that her bag was missing and recalled that she probably left it inside the defendants taxi. She texted her boyfriend and asked him to collect the handbag from his friend. By the following day Sunday, 24th she had still not received her handbag. She was able to contact the defendant direct. The defendant told her that he will drop off her bag when she finished work later that evening.

The complainant finished work that Sunday about 9:30 pm in the evening. She was at her home at Vaiusu when the defendant contacted her for directions to her house. Some time later the defendant arrived and met the complainant who was walking towards a nearby shop. The complainant asked about her handbag and the defendant told her the handbag was at his house at Pesega. The defendant asked her to come with him to fetch the bag. The complainant was hesitant but eventually agreed. The handbag was picked up.

But instead of returning the complainant to Vaiusu the defendant drove to Tuanaimato and parked in close proximity to the Faleata Golf Course. There the vehicle parked and the defendant proceeded to chat up the complainant. The conversation continued but the complainant rebuffed the defendants attempts to get amourous. She asked the defendant to take her back to her house a number of times. The defendant refused to let her go and at one stage pulled her back into the vehicle when she tried to exit. He then turned on the vehicle and drove towards Tafaigata.

The summary relates that the complainant cried and pleaded with the defendant to take her home. The defendant swore at her and refused. Eventually the vehicle stopped in a secluded area close to the Tafaigata Tsunami Cemetery. The defendant turned to the complainant and began to remove her clothing. The complainant continued to resist and struggled. And the defendant according to the summary again swore and continued with his actions. He dragged the complainant into the back seat where he pinned her down and removed her pants and panties. The complainant tried to kick him in the genitals but did not succeed. She also tried to scream but he told her to be quiet “tapuni lou gutu”.

At one stage according to her testimony she tried to push him off and he bit her fingers. He engaged in various sexual actions including digitally penetrating her private part with his finger following which he had full intercourse with her and continued until he was satisfied. Once this was achieved the complainant re-dressed and the defendant returned her to Vaiusu where he left her on the road in the vicinity of her house. The complainant made a complaint to her cousin about what happened and eventually laid a complaint with the police.

The facts of this matter show this to be a forceful rape where the defendant used his superior size and strength to overcome the complainants resistance. It was a harrowing and no doubt frightful ordeal for the complainant. In her evidence she said that afterward she felt nauseous and almost fainted. She was at the time 22 years old and a working female with a boyfriend. She was emphatic in her evidence that at no time did she encourage or consent to what the defendant did. She merely wanted her purse back and thought she could trust the defendant who was a friend of her boyfriend. In her victim impact reports she relates that she has broken up with her boyfriend as a result of this incident which she partly blames him for. Which is probably not fair but it indicates that she is suffering emotional scarring and trauma as a result of this incident.

There is in my view a real need for rape victims such as this complainant to receive specialized counseling and assistance post offending. After an offender has been dealt with by the judicial and the police system. To help them recover from their ordeal. Such women are after all innocent victims in need of support. It is an area the Samoa Victim Support Group tries to address. But the work of that group seems focused on young victims. And their work is hampered by limited resources. Further, they are a volunteer organization doing the best that they can in trying to handle a large number of sexual and other kinds of complaints. Counseling adult female victims such as the victim is probably better addressed by programmes specifically designed to meet their ongoing needs. Programmes conducted by properly qualified and experienced counselors such as are available in other jurisdictions like New Zealand and Australia. Some of which are in fact conducted by Samoan NGO’s in those jurisdictions.

The maximum for rape is life imprisonment and the maximum for the secondary offence the defendant has pleaded guilty to is 7 years in prison. There is no question the circumstances of the offending requires an imprisonment sentence. To hold the defendant accountable for his actions. To denounce as a society those actions. And to deter the defendant from future conduct like this and to deter other potential offenders.

In relation to penalty the prosecution have filed a memorandum stating that the court should follow a band sentencing approach. I have stated in my Police v Tolutasi (23 April 2012) decision the reasons why I do not believe such an approach is suitable to the crime of rape. I do not propose to reiterate those reasons but I am in agreement with Slicer J and his observations in Police v Filipo [2011] WSSC 127 under the heading Caveat.

I adopt instead the traditional approach to sentencing of setting a start point taking into account the relevant aggravating and mitigating factors of the offending. Such factors include the defendant taking advantage of the complainants trust in him as a friend of her boyfriend, his using of the handbag as a pre-text to bring the complainant under his control and driving her to a deserted area where she was alone and vulnerable. Also I take into account the degree of force used in the offending. And the harm occasioned to the complainant and the effect it has had on her life as outlined in her impact victim report.

Having regard to all these factors I set a start point for sentence at 10 years in prison. The defendant has a previous conviction for recent sexual offending namely carnal knowledge in 2006 for which he received a 2 year imprisonment sentence. A sentence which he has served but which shows that he remains a threat to the young women of this community. I accordingly upgrade the start point from 10 to 11 years.

From that total there are certain deductions you qualify for some of which have been referred to by your counsel. Normally a large deduction is available for a guilty plea. But here the defendant repudiated his guilty plea and tried to obtain the courts agreement to revert to a not guilty plea. He was unsuccessful in that effort but it meant evidence had to be called including the evidence of the complainant which the court accepted. And the defendant continues to protest his innocence. Which all means that he has expressed no remorse for his offending. This is consistent with the fact that no ifoga as is normal in our country has been presented to the complainants family. Or a personal apology made to the complainant herself.

The only significance then of the guilty plea is that it has saved some small time. And for that I will the give the defendant a credit of 6 months. As a show of general leniency and in recognition of his wanting to keep his family out of further involvement in this matter I will exercise the discretion of a sentencing judge and accord you Tolo another 6 months deduction. Those two deductions of 1 year is deducted from the 11 years start point leaving a balance of 10 years in prison. There are no other deductions the defendant qualifies for neither has counsel been able to seek any other deduction in respect of the sentence.

On the charge of rape information S1892/11 you will be convicted and sentenced to 10 years in prison. Defendants time awaiting sentence is to be deducted from that period. In respect of the secondary charge of abduction S2037/11 the defendant will be convicted and sentenced to 4 years in prison but that term is to be served concurrent with the term for rape.

..........................

JUSTICE NELSON