Police v Tofilau [2014] WSSC 24 (11 July 2014)

SUPREME COURT OF SAMOA

Police v Tofilau [2014] WSSC 24

Case name: Police v Werner Tofilau

Citation: [2014] WSSC 24

Decision date: 11 July 2014

Parties: POLICE (prosecution) and WERNER TOFILAU male of Vailoa and Lotopa.

Hearing date(s):

File number(s): S22/14, S23/14, S24/14

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:

Representation:
R Titi for prosecution
Accused in person

Catchwords:

Words and phrases:
sexual violation, indecent assault, giving narcotics, maximum penalty, mitigating and aggravating features, sentence

Legislation cited:

Crimes Act 2013 s.53(1)
Narcotics Act 1967 s.18(1)

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S22/14, S23/14, S24/14

BETWEEN

P O L I C E
Prosecution

A N D

WERNER TOFILAU male of Vailoa and Lotopa.

Accused

Counsel:
R Titi for prosecution
Accused in person

Sentence: 11 July 2014

S E N T E N C E

The charges

1. The accused appears for sentence on one charge of attempting to commit sexual violation (attempted rape), contrary to s.53(1) of the Crimes Act 2013, which carries a maximum penalty of 14 years imprisonment and one charge of giving narcotics, namely, eighteen small plastic packets of dried marijuana leaves, contrary to s.18(1) of the Narcotics Act 1967, which carries a maximum penalty of 14 years imprisonment. He pleaded not guilty to both charges.
2. Even though the offences with which the accused was being charged were committed at different times, they were tried together for convenience. The accused was found guilty of both charges.

The attempted rape offending

3. On Tuesday 31 December 2013, the victim finished work at 2:00pm in the afternoon but she had to stay behind with other fellow employees for dancing practice. When the dancing practice finished, it was late in the evening and there were no more buses. The victim and two of her work mates then came to the Farmer Joe supermarket at Fugalei to find transport to go home.
4. At the Farmer Joe supermarket, the victim got into the backseat of the accused’s taxi to take her to Letogo. At that time, the accused and the victim were total strangers to one another. The taxi then drove off for Letogo. When the taxi arrived at the Ia Malamalmama bookshop at Tamaligi, the accused turned the taxi around and stopped it in front of Greg Meredith’s store nextdoor. He then asked the victim to go and buy him a large bottle of coke and half a packet of cigarettes. When the victim returned from the store and got back into the back seat of the taxi, the accused told her that they would go on a quick errand before he would drop her off. The victim was somewhat hesitant and unsure but voiced no objection.
5. The taxi then drove back along Beach Road and when it reached the Flea Market at Savalalo, the accused turned around and said to the victim that he wanted to be her lover (“O a’u ou te fia uo ia oe”). The victim replied no as she had just turned 17 years and was still attending school. The accused did not reply but continued on driving towards Mulinuu until they reached a boat-house on the inland side of the main road not far from the Meteorological Office where the taxi stopped. As to what followed, I had decided to accept the evidence of the victim and reject that of the accused.
6. The accused then came out of the driver’s seat and got into the back seat where the victim was sitting. He kissed (“faakisi”) the victim, sucked her breasts, grabbed her thighs, and tried to remove her clothes. He pulled down her top and bra. He also pulled down her shorts. At all this time, the victim was crying, resisting the accused, and pleading with him to let her go. She did not scream as there was no one around and it was dark. Somehow, she found the strength to push and kick the accused away. She then opened the door of the taxi next to her, pulled up her shorts, and ran to the main road. She heard the accused calling out “you win”.
7. The victim then continued running all the way to the taxi stand where her uncle was working on the seaward side of the road from the Seana Nigh Club and the Amanaki Hotel at Sogi. At that time, the accused was following her in his taxi asking her to get back into the taxi so he could take her home. She refused. When they reached the Seana Night Club, the accused then drove off.
8. When the victim reached the taxi stand where her uncle was working, she told him what had just happened to her and that the accused had tried to rape her. The victim’s uncle was called as a witness by the prosecution and he testified that when he saw the victim that night, she appeared frightened and she was crying and in a distressed condition.

The narcotic offending

9. In the afternoon of Wednesday 19 March 2014, as a result of a phone call, a police search party went to the house of one Toiloto Seaga at Savalalo. When the police arrived at the house of Toiloto, they found Toiloto, the accused, and a woman named Hemara Petelo sitting at a table talking. Sergeant Musu Talai who led the police search party informed Toiloto of the reason as to why the police had come to his house and the relevant statutory power of the police to search his house for suspected marijuana.
10. Shortly afterwards, Toiloto took out a paper bag from under the table and emptied its contents on the table in front of sergeant Musu Talai. They were eighteen small plastic bags of marijuana substances. Toiloto told the police sergeant that the accused brought those small plastic bags of marijuana to him for sale to consumers. Toiloto said the same thing in his evidence at trial which I accepted. This incident occurred while the accused was on bail for the earlier charge of attempted rape or attempting to commit sexual violation.

The accused in relation to the attempted rape charge

11. The accused is 31 years old. He has a wife and young child. He worked as a taxi driver. He is a first time sexual offender but has previous convictions for theft as a servant in 2009 and for uttering insulting words and drunkenness in 2013. The pre-sentence report shows that he still maintains that he is innocent of this matter which is not a sign of remorse.

The victim

12. The victim is 17 years old and attending school. At the time of the offending, she was working on a part-time basis.

The aggravating and mitigating features of the attempted rape

13. There are several aggravating features of the attempted rape offending. These are: (a) pre-mediation on the part of the accused, (b) vulnerability of the victim as a taxi passenger, (c) breach by the accused as a taxi driver of the victim’s trust as a passenger, (d) the age difference of 14 years between the accused and the victim, and (d) the psychological impact that this offending must have had on the victim. As the victim’s uncle had testified, the victim was crying, appeared frightened, and was in a distressed condition when he saw her on the night in question.
14. There is no mitigating feature of the offending. There is also no aggravating or mitigating feature that is personal to the accused as offender.

The aggravating and mitigating features of the giving of narcotics

15. The aggravating features of the giving of narcotics offending are: (a) the quantity of marijuana substances involved, (b) these substances were given by the accused to Toiloto for a commercial purpose, and (c) this offence was committed while the accused was on bail for the charge of attempted rape or attempting to commit sexual violence.
16. There is no mitigating feature of the offending. There is also no aggravating or mitigating feature that is personal to the accused as offender.

Discussion

17. The offence of attempted rape or attempting to commit sexual violation committed by a taxidriver on a female passenger clearly calls for a deterrent sentence. Having regard to the aggravating features of the offending, I will take 7 years as the starting point for sentence. There is no addition or deduction to be made to that starting point.
18. In relation to the offence of giving narcotics, I will take 12 months as the starting point for sentence having regard to the aggravating features relating to the offending. There is also no addition or deduction to be made to that starting point.

The result

19. For the charge of attempting to commit sexual violation or attempted rape, the accused is convicted and sentenced to 7 years imprisonment. It is unnecessary to pass sentence on the alternative charges of indecent assault and assault. Those alternative charges are included in the principal charge of attempting to commit sexual violation.
20. For the charge of giving narcotics, the accused is sentenced to 12 months imprisonment.
21. Both sentences to be cumulative so that the accused will serve a total sentence of 8 years imprisonment.
22. There is to be no deduction for the time the accused has spent in custody. The reason is because the accused was remanded in custody as he committed the offence of giving narcotics while he was on bail for the offence of attempting to commit sexual violation. That is why he was then kept in custody – to prevent re-offending.
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CHIEF JUSTICE

• Solicitor
• Attorney-General’s Office, Apia for prosecution