Police v Raki [2014] WSSC 193 (17 November 2014)

IN THE SUPREME COURT OF SAMOA
Police v Raki [2014] WSSC 193

Case name:	Police v Raki
Citation:	[2014] WSSC 193
Decision date:	17 November 2014
Parties:	POLICE (Prosecution) TAKI PELENATO RAKI male of Vaimoso. (First Defendant) AND POE FUAULI also known as BONAVENTURE MAVAEGA male of Saleimoa and Faleapuna
Hearing date(s):	-
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	Taki for your first rape of the victim, you will be convicted and sentenced to 12 years imprisonment. Poe for your part in assisting in the rape you will be convicted and sentenced to prison for 12 years. Poe for your rape of the victim, convicted and sentenced to 12 years in prison concurrent term. Taki for your assisting Poe in that rape 12 years in prison concurrent term. Taki in respect of the second rape because you raped the victim a second time on that charge you will also be convicted, but to reflect that charge sentenced to 15 years in prison concurrent term. For your part Poe in assisting in that rape 12 years in prison also concurrent term. On the second charge of grievous bodily harm the evidence is clear. You both assaulted the victim to subdue and keep her quite. You both have previous convictions for offences of violence. On grievous bodily harm charge you will be each convicted and sentenced to 6 years in prison, also concurrent terms. On the charge of robbery you both took something from the victim and you both have recent convictions for similar offending. For the offence of robbery each will be convicted and sentenced to 2 years in prison, again concurrent term. The end result of all these sentences is Taki you will serve 15 years in prison. Poe you will serve 12 years in prison. Remand in custody time to be deducted. Given the value of the hard drive the maximum penalty for this offence is 12 months in prison. An appropriate start point is 6 months in prison, upgraded to 9 months because of his relevant previous conviction. For your guilty plea Poe I deduct 3 months from that, leaves 6 months in prison. On this charge you are convicted and sentenced to 6 months in prison. Because this is a separate incident that is cumulative to your other term of imprisonment.
Representation:	L Sio and O Tagaloa for prosecution M V Peteru for defendant
Catchwords:	-
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

TAKI PELENATO RAKI male of Vaimoso.
First Defendant

AND:

POE FUAULI also known as BONAVENTURE MAVAEGA male of Saleimoa and Faleapuna.
.
Second Defendant

Counsel: L Sio and O Tagaloa for prosecution
M V Peteru for defendant

Sentence: 17 November 2014

SENTENCE

1. The two defendants have pleaded guilty to charges of rape, grievous bodily harm and robbery. As per the summary of facts filed by the police, the first defendant Poe Fuauli is a 20 year old from Saleimoa, Vaipuna and Vaitele, single and unemployed. His pre-sentence report indicates he helps out in his father’s business. The second defendant Taki Raki is 21 years old of Vaimoso, single, also listed as unemployed. His pre-sentence report indicates he stays at home and helps out with family chores. The victim is a 30 year old female of Vaiusu, married three children. At the time of this offending was employed as a security officer for a security company. Her partner was also working as a security officer for the same company.
2. The police summary says on Thursday 19 September 2013 at about 11:00 p.m., the victim and her partner were walking on the seawall at the Eleele Fou behind the Government Building. They were going to work for their midnight shift. They met up with the defendants who had been drinking at the RSA Club. One of the defendants asked for a light for his sikaleti. The couple stopped and as the man was looking for a lighter Poe punched him in the mouth causing him to fall down by the seawall. Taki jumped in and assisted Poe in beating up the victims partner. Taki also punched the victim in the mouth. The victims partner was able to get away from the two defendants and ran to get help leaving the victim behind.
3. Taki then punched the victim again on the jaw causing her to fall down and continued to assault her by further punches. The defendants took the victim away from the seawall to underneath a nearby coconut tree and proceeded to remove her pants. The victim cried and screamed out for help but was overpowered by the defendants. She was told by Taki “e ke koe e’e loa i luga faga loa oe i le faga”. Poe held down the victims neck and upper body while Taki removed the victims pants or basketball shorts. Also removed her underpants and then inserted his penis into her vagina and had sexual intercourse with her until he was satisfied. While he was doing that Poe was holding the woman down, holding her upper body covered her mouth with his hands and was fondling her breasts.
4. After Taki had sex with the victim Poe removed his pants and had forceful intercourse with the victim until he was satisfied. While Poe was doing this Taki was holding her body and covering her mouth and also fondling and sucking her breasts and neck. When Poe was finished he moved away from the victim and told Taki that they should leave. But Taki wanted more and inserted his penis into the victim again and had sexual intercourse with her for a second time while Poe held her down. The defendants heard people moving towards them so they stopped what they were doing grabbed the victims wrist watch and basketball shorts and ran away from the scene.
5. A lady who heard the victims screams came to the scene and found the victim naked and helped her by giving her an ie lavalava. Police came on to the scene having been alerted by the victims partner and they patrolled the area and found the defendants hiding behind the seawall not far from where the rape had taken place. Police arrested them and brought them over to where the victim was and they were both identified immediately as her attackers. The victims shorts were recovered but not the wrist watch and a bottle of lotion in the shorts.
6. The victim was taken to Motootua hospital for treatment and the examining doctor noted the following: she was in distress, complaining of pain to her right arm and left jaw; although she was in shock she was conscious and alert; there were bruises i.e. love bites on both breasts. There is no further report in the summary of facts as to whether a vaginal examination was carried out and what it found.
7. The victim in her victim impact report says she thought her arm was broken because she was using it to block a lot of the punches she was receiving. I will issue the usual suppression order in relation to the details of the victim.
8. The pre-sentence report indicates the defendants had been drinking earlier at the RSA Club. When they came out and saw the couple they became excited and decided to carry out this offence. There is no question this was a brutal sexual assault on an unsuspecting couple out for a late night walk on the seawall. Even though the couple were security officers the defendants were able to subdue them in their attack which is indicative of the forceful and aggressive nature of the assault. The facts indicate they subdued the victim and then took her to underneath a nearby coconut tree where they took turns raping her. They left her naked at the scene. The trauma on the victim would be significant. She talks about a lot of this trauma in her victim impact report and how this incident has affected her life.
9. Both defendants have a history of serious offending. Poe for burglary and theft for which he was sent to prison. While there he committed an assault which resulted in a further term of imprisonment. He has now graduated to rape and robbery. Taki was sent to prison for robbery and actual bodily harm and while on parole for those offences committed the present offences. These events indicate no remorse or lesson was learned from prison by him; it is probably true of his co-defendant as well. The public needs protection from people like this. You are both going to be sent back to prison.
10. I will deal firstly with the rapes. The maximum for rape is life in prison. I agree with the prosecution an appropriate start point for sentence is the B3 category 14 – 20 years. This being a rape by the two of you on a defenceless woman one holding her down while the other one raped her. A 16 year start point for sentence is appropriate. The only deductions you qualify for gentlemen is for your guilty plea because you have saved the time of the court and the resources of the court and especially no testimony is required from the victim who is still trying desperately to put this incident behind her
11. For your guilty plea therefore I give you a quarter deduction of sentence, that is a period of 4 years, leaves a balance of 12 years from the 16 year start point. You are not first offenders; there has been no reconciliation; there are no other deductions that can be made from your sentence.
12. Taki for your first rape of the victim, you will be convicted and sentenced to 12 years imprisonment. Poe for your part in assisting in the rape you will be convicted and sentenced to prison for 12 years. Poe for your rape of the victim, convicted and sentenced to 12 years in prison concurrent term. Taki for your assisting Poe in that rape 12 years in prison concurrent term. Taki in respect of the second rape because you raped the victim a second time on that charge you will also be convicted, but to reflect that charge sentenced to 15 years in prison concurrent term. For your part Poe in assisting in that rape 12 years in prison also concurrent term.
13. On the second charge of grievous bodily harm the evidence is clear. You both assaulted the victim to subdue and keep her quite. You both have previous convictions for offences of violence. On grievous bodily harm charge you will be each convicted and sentenced to 6 years in prison, also concurrent terms. On the charge of robbery you both took something from the victim and you both have recent convictions for similar offending. For the offence of robbery each will be convicted and sentenced to 2 years in prison, again concurrent term.
14. The end result of all these sentences is Taki you will serve 15 years in prison. Poe you will serve 12 years in prison. Remand in custody time to be deducted.
15. Poe has also pleaded guilty to a separate charge of theft. The summary of facts from the police which he has accepted indicates that happened on 29 August this year around 12:00 a.m. The complainant was a visitor from overseas who had been out that night. He drove his car to the Samoa Tourism Authority car park at the Eleele-fou and parked. He went to a nearby table to eat his food and passed out at the table. The defendant came along saw the complainants car and removed an external hard drive valued at $500. Securities from the STA office saw this happening and chased the defendant. Found him at the Mulivai River next to the Catholic Church apprehended him and handed him over to the police. As a result Poe has pleaded guilty to theft of the hard drive. No victim impact report has been filed but I assume that he was caught with the stolen hard drive and that it has been returned to its owner.
16. Given the value of the hard drive the maximum penalty for this offence is 12 months in prison. An appropriate start point is 6 months in prison, upgraded to 9 months because of his relevant previous conviction. For your guilty plea Poe I deduct 3 months from that, leaves 6 months in prison. On this charge you are convicted and sentenced to 6 months in prison. Because this is a separate incident that is cumulative to your other term of imprisonment.
    

JUSTICE NELSON