Police v Feaualii [2015] WSSC 228 (20 April 2015)

IN THE SUPREME COURT OF SAMOA
Police v Feaualii [2015] WSSC 228

Case name:	Police v Feaualii
Citation:	[2015] WSSC 228
Decision date:	20 April 2015
Parties:	POLICE (Prosecution) LIU FEAUALII, male of Aele and Tanumapua. (Defendant)
Hearing date(s):	-
File number(s):	S3490/14, S3489/14, S3488/14
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	For the charge of rape convicted and sentenced to 7 years in prison. Remand in custody time to be deducted. In respect of the second charge of indecent assault that you pleaded guilty to. Making the appropriate deductions you will be convicted and sentenced on that charge to 6 months in prison. But because that is a separate incident I do not consider that to be part of the later rape. That term will be cumulative.
Representation:	O Tagaloa and F Ioane for prosecution Defendant unrepresented
Catchwords:	-
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

LIU FEAUALII, male of Aele and Tanumapua.
Defendant

Counsel: O Tagaloa and F Ioane for prosecution
Defendant unrepresented

Sentence: 20 April 2015

SENTENCE

1. The defendant has pleaded guilty to three charges. Firstly S3490/14 that on 03 September last year he did rape the complainant. Secondly S3489/14 that on the same day same place he did indecently assault the same girl. And thirdly that same day same place he did have a sexual connection with a young person namely the same victim information S3488/14. Usual suppression order will issue if one has or not already been issued prohibiting publication of the complainants name and details.
2. The police summary of facts which the defendant accepted this morning says he is a 19 year old male single and employed as a groundskeeper. His pre-sentence report indicates he lives at home with his family and attends to the normal obligations of a young man of his age to his church, aumaga and to his village generally. The victim is his 12 year old neighbour, attends school and her brother is a close friend of the defendant.
3. The summary says on 03 September 2014 the victim was at her house when the defendant and friends together with the victims brother came to the house and began drinking a bottle of alcohol. At the time the victim was in the house watching MTV’s on her fathers phone. The victim was taken by surprise when the defendant approached her from behind and hugged her. He then inflicted two love bites on each side of her neck and kissed her on the lips. The summary says the defendant was pushed away by a friend of the victims brother and he left and went to sell his coconuts. When the defendant left the victim looked in the mirror and saw the love bites on her neck. These acts are said to constitute the acts of indecent assault that is the subject of S3489/14.
4. The summary continues that a passing vehicle bought all the defendants coconuts so he returned back to the party at the victims house. At that time while the victim was inside the house playing with her younger siblings. Her brother noticed the love bites on the victims neck and questioned her about it. The victim told her what happened so the brother chased the defendant away from their house. The drinking party appears to have continued and the victim went and had a shower and went to her room. She noticed her brother was no longer part of the drinking group but the defendant had rejoined the group. The victim then hopped into bed and went to sleep.
5. She was awoken when she felt someone lying beside her. She opened her eyes and saw it was the defendant. And that the defendant had covered both of them with a sheet. She tried to sit up but the defendant pulled her back down then lay on top and undressed her. She tried to hang on to her underwear but the defendant was too strong and he managed to take off the victims undergarments. He then had sexual intercourse with the victim without the victims consent. The victim squirmed as she was experiencing pain in her genital area. She called out for help but the members of the drinking party did not respond. She also told the defendant she was in pain but he ignored her and continued to have forced intercourse with her. After some time the defendant withdrew from her private part and rubbed his penis on her stomach.
6. It is not clear from the summary what stopped the defendants actions but it appears from what the defendant told the probation office that it was the victims brother who came into the house and interrupted the defendants actions. The defendants actions constitute the acts of rape and unlawful sexual connection with which he is charged. But as the rape and unlawful sexual connection charges seem to refer to just the one act, the sexual connection charge is therefore superfluous and I dismiss that. Leaving the defendant to be sentenced on the rape and earlier indecent assault.
7. The victim was taken to the hospital for a medical examination the next day. When the defendant was apprehended by the police and interviewed he admitted to committing all the aforementioned sexual acts on the victim. There is no question that the seriousness of the offending in this case must be met by an imprisonment term. The defendants behaviour which consisted of a drunk young male forcing himself on a vulnerable 12 year old requires that penalty. To deter the defendant from doing this in the future and as a message to other young men that if you do this prison awaits you. Such penalty is also necessary to hold the defendant accountable for his actions.
8. I deal with the most serious charge first that of rape. The aggravating factors include the fact that there was a breach of trust involved because the victim was known to the defendant. He is a close friend of the girls brother and is a neighbour. I also take into consideration that the sexual assault occurred in the victims bedroom inside her family home a place where the victim is entitled to feel safe. The acts that were carried out by the defendant were obviously premeditated he waited until the victim was alone and the brother was not around. A moderate degree of violence was involved. Medical report from the doctor who saw the victim the next day indicates what the defendant did was forceful enough to cause multiple abrasions to the neck cheek and both breasts of the victim. The assault has also had a lasting impact on the victim as outlined in her victim impact report.
9. In terms of sentencing bands for the offence of rape I assess this to be in the B-2 class. But at the lower end of B-2 and I therefore start sentencing at 10 years in prison. Upgraded to 12 years because of the young age of the victim and her vulnerable circumstance at the time of your offending.
10. From that 12 years start point you are entitled to certain deduction Liu which I will now make on your behalf. For your guilty plea one-quarter of sentence that is a period of 3 years, leaves 9 years.
11. You have a reasonably good pre-sentence report noting your tautua to your aiga ekalesia and village. You have a previous conviction but it is for a different offence. And I note it was in the Youth Court when you were obviously under 17 years of age. I will not hold that against you I will give you the full deduction in this regard a period of 6 months, leaves 8½ years.
12. When you committed this offence you were 19 years of age according to what is before me. The Court of Appeal recently noted a deduction should always be made for the age of a young offender and prospects of rehabilitation. I deduct one (1) year for that, leaves 7½ years in prison.
13. Your parents have told the probation office the matter has been reconciled but they have been unable to confirm that. I will accept for todays purposes that such apology has been made and accepted by the girls parents and deduct 6 months from your sentence. But if the police find that is not the case the defendant can always be brought back for re-sentencing Mr Tagaloa. But for today I will accept it was done I deduct 6 months, leaves a balance of 7 years in prison.
14. There are no other mitigating factors in your favour Liu. For the charge of rape convicted and sentenced to 7 years in prison. Remand in custody time to be deducted.
15. In respect of the second charge of indecent assault that you pleaded guilty to. Making the appropriate deductions you will be convicted and sentenced on that charge to 6 months in prison. But because that is a separate incident I do not consider that to be part of the later rape. That term will be cumulative.
16. O lona uiga o le faaiuga o lau mataupu Liu e 7½ tausaga e tuli i le toese mo moliaga uma nei e lua. Ae tatau ona toesea mai le 7½ tausaga lena le taimi lea sa e nofo taofia ai e faatalitali le faaiuga.
    

JUSTICE NELSON