Police v Leota [2013] WSSC 88 (16 October 2013)

SUPREME COURT OF SAMOA

Police v Leota [2013] WSSC 88

Case name: Police v Leota

Citation: [2013] WSSC 88

Decision date: 16 October 2013

Parties:
POLICE (prosecution) and TALALELEI PULE LEOTA (accused) male of Laulii and Moto’otua.

Hearing date(s):

File number(s): S15401/13

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:

Representation:
F E Niumata and O Tagaloa for prosecution
Accused in person

Catchwords:
Sentence, attempted sexual violation, simple burglary, mitigating and aggravating features

Words and phrases:

Legislation cited:
Crimes Act 2013 s.53 (1) and s.174 (1) (a)

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

FILE NO: S15401/13

BETWEEN

P O L I C E

Prosecution

A N D:

TALALELEI PULE LEOTA male of Laulii and Moto’otua.

Accused

Counsel: F E Niumata and O Tagaloa for prosecution

Accused in person

Sentence: 16 October 2013

S E N T E N C E

The charges

1. The accused appears for sentence on one charge of attempted sexual violation, contrary to s.53 (1) of the Crimes Act 2013, which carries a maximum penalty of 14 years imprisonment and one charge of simple burglary, contrary to s.174 (1) (a) of the Act, which carries a maximum penalty of 10 years imprisonment. To both charges the accused pleaded guilty at the earliest opportunity.

The offending

2. The accused is 19 years old and the victim is 71 years old. Both are from the village of Laulii. On Tuesday afternoon 23 July 2013 at around 4:00pm, the victim was mowing her lawn when the accused came by to her place. The victim asked the accused if he wanted to help her. The accused agreed and together they mowed the victim’s lawn. The accused then left the victim’s place.
3. Around 8:00pm at night the victim went to bed. Her relative who was with her slept in another bedroom. At about midnight, the accused came to the victim’s house and entered through the backdoor.
4. At that time, the victim who was asleep was awakened by the sound of a tap inside her house which someone had turned on. She stood up and went to find which tap inside her house was on. She went first to the kitchen but the kitchen tap was off. She then walked to the bathroom. She was shocked when someone approached from behind and closed her mouth using his hand. She was then pulled into one of the bedrooms.
5. The intruder threw the victim onto the bed and got on top of her and closed her mouth. She struggled to free herself but the intruder was too strong for her. The intruder then tried to take off the victim’s clothes but was not able to do so. At that time, the victim was able to scream out. This woke up the victim’s relative who was sleeping in another bedroom. The victim’s relative ran to the bedroom where the scream came from but the intruder had fled the house. As it was dark and the lights of the victim’s house were off, the victim was not able to see clearly who the intruder was.
6. Then on the following day, the victim found a silk short belonging to the accused inside her house. That made her suspect that it was the accused who had come to her home. She then reported the accused and this matter to the police. On Wednesday 31 July 2013, the police apprehended the accused and brought him to the Apia police station where he was cautioned and interviewed. The accused admitted to the police that it was him who went into the victim’s house as he wanted to have sexual intercourse with the victim.

The victim

7. As already mentioned, the victim is 71 years old. As a result of this incident she is afraid to stay by herself at her home. At times she becomes paranoid as she fears that someone else might do the same thing to her again. She has been traumatised by what happened to her. She tends to cry when she thinks about what happened as she does not believe that a young child like the accused would have done such a thing to her. As a further result of this incident, the victim was taken by her family to Australia to try and make her forget what had happened to her. The accused and his family have also not apologised to her.

The accused

8. The accused, as earlier mentioned, is 19 years old. Because of this incident, he has been banished from his village by the village council. He also has a previous conviction in 2012 for burglary and theft for which he was sentenced to prison for 2 months and 2 days by the District Court.

The aggravating and mitigating features

9. This is a case of attempted sexual violation and burglary. The seriousness of this offending lies more with the attempted sexual violation than with the burglary. This is the type of offending we call in Samoa as “moetolo”. The aggravating features of the offending are: (a) home invasion, (b) the old age of the victim, (c) the time it was committed, that is, whilst the victim was asleep at night, (d) the planning and pre-mediation that must have been involved in this offending, and (e) the impact of the offending on the victim particularly its psychological effect. There is no mitigating feature of the offending.
10. In relation to the accused as offender, there is an aggravating feature personal to him. This is his previous conviction for burglary and theft in 2012. The mitigating factors personal to the accused as offender are the fact that he has been banished from his village and his plea of guilty to the charges against him at the earliest opportunity. I would not consider the young age of the accused as a mitigating feature as he is not a first offender.

Discussion

11. In this type of case, considerations of denunciation, retribution and deterrence should take precedence over those of rehabilitation. Having regard to those considerations and the aggravating features of the offending, I will take 8 years as the starting point for sentence. For the accused’s previous conviction for burglary and theft, which is an aggravating feature personal to the accused, I will add on 6 months. That raises the starting point to 8½ years. I will deduct one year for the banishment imposed by the village council on the accused. That reduces the staring point to 7½ years. I will further deduct a 1/3 discount for the accused’s plea of guilty at the earliest opportunity. That further reduces starting point to 5 years.

The result

12. The accused is sentenced to 5 years imprisonment on the charge of attempted sexual violation. For the charge of burglary, the accused is sentenced to 18 months imprisonment. Both sentences are to be concurrent.
13. Any time the accused has already spent in custody is to be deducted from that sentence.

CHIEF JUSTICE

Solicitor

Attorney General’s Office, Apia, for prosecution