Police v Filisi [2014] WSSC 95 (27 January 2014)

IN THE SUPREME COURT OF SAMOA
Police v Filisi [2014] WSSC 95

Case name:	Police v Filisi
Citation:	[2014] WSSC 95
Decision date:	27 January 2014
Parties:	The Police (Prosecution) Tua Filisi, male of Lalomanu and Apia
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Courthouse, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	Convicted and sentenced to 4 years in prison but your time in custody awaiting sentencing for this matter is to be deducted.
Representation:	O Tagaloa for prosecution T S Toailoa for defendant
Catchwords:	Attempted rape – deterrent sentence – seriousness of the offending – previous good record – convicted and sentenced.
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE
Prosecution

AND:

TUA FILISI, male of Lalomanu and Apia.
Defendant

Counsel: O Tagaloa for prosecution
T S Toailoa for defendant

Sentence: 27 January 2014

SENTENCE

1. After a defended hearing a panel of assessors unanimously found the defendant guilty of attempted rape of a complainant who at the time was 17 years of age. The facts at trial established that after Sunday toonai in the afternoon the defendant who is the husband of the complainants cousin and who at the time was staying with the complainant and her family entered the complainants bedroom while the girl was asleep. He jumped on top of her and tried to undress her, fondled her and groped her without her consent. And according to her tried to rape her. He got as far as undoing his jeans all the while holding down the complainant. Who according to her testimony was resisting and calling out for help. These actions caused the defendant to cease what he was doing, as there were other people in the house at the time. When the complainant came out of her room she came across a female cousin who noticed that the tip of her ear was bleeding and to whom the complainant made a complaint of attempted rape.
2. The defendant at trial denied that anything like this had happened. But by their verdict it is clear that the assessors did not believe him. His counsel has told the court that the defendant still maintains he is innocent of the charge and that is also apparent from what the defendant told the probation office.
3. The maximum penalty for the offence of attempted rape under the old crimes legislation which is the legislation the defendant was charged pursuant to is 10 years in prison. There is no question that an imprisonment penalty is required for the offending. Even the defendants lawyer accepts that and merely asked for a 3 to 4 years start point for sentence. An imprisonment penalty is required to denounce the defendants offending, to reflect the seriousness of the offending, to deter the defendant from future behaviour like this and as a general deterrent to other males.
4. Considering all the relevant circumstances of your case Tua including the relationship and age disparity between you and young girl and the degree of violence involved as well as the age of the complainant a 5 year start point for sentence is in my view appropriate. Had you pleaded guilty there would have been a substantial discount from that term. But you elected to go to trial and forced the complainant to relive an unpleasant experience. You have also continued to deny responsibility indicating a complete lack of remorse on your part. The only deduction therefore you are entitled to is for your previous good record. That is fully outlined in the pre-sentence report from the probation office. I have also read the many character references that have been submitted on your behalf by a variety of different people. To reflect those factors I will deduct 12 months from the start point of your sentence leaves a balance of 4 years. There are no other deductions that you qualify for.
5. On this charge of attempted rape of this particular complainant you will be convicted and sentenced to 4 years in prison but your time in custody awaiting sentencing for this matter is to be deducted.

JUSTICE NELSON