Police v Taulapapa [2015] WSSC 238 (17 August 2015)

IN THE SUPREME COURT OF SAMOA
Police v Taulapapa [2015] WSSC 238

Case name:	Police v Taulapapa
Citation:	[2015] WSSC 238
Decision date:	17 August 2015
Parties:	POLICE (Prosecution) FAIMATA TAULAPAPA, male of Mulifanua, Ululoloa and Magiagi. (Defendant)
Hearing date(s):	-
File number(s):	S1993/14, S2115/14
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	On the charge of attempted rape or attempted sexual violation convicted and sentenced to 6 years in prison. Custody time awaiting sentence is to be deducted. On the second charge of abduction a 6 year start point for sentence will be applied. I make similar deductions for factors in your favour reduces that to 3½ years in prison. That term is to be served concurrent to your term for the other charge. So the defendant will serve 6 years in prison minus any remand in custody time awaiting sentence.
Representation:	O Tagaloa for prosecution Defendant unrepresented
Catchwords:	-
Words and phrases:	Attempted sexual violation
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

FAIMATA TAULAPAPA, male of Mulifanua, Ululoloa and Magiagi.
Defendant

Counsel: Ms Amosa and F Ioane for prosecution
Defendant unrepresented

Sentence: 17 August 2015

SENTENCE

1. The defendant has pleaded guilty to two charges: one of abduction and one of attempted sexual violation. The police summary of facts says he is a 58 year old male of Mulifanua and Ululoloa married and works as a taxi driver. The victim is a 15 year old female still at school. A suppression order has been issued prohibiting publication of her details because of her age.
2. The summary says that on Friday, 13 June at about 7:00 am in the morning the victim was sent by her mother to a nearby shop. The defendant drove by in his taxi approaching her from behind. The summary says the defendant grabbed her and pulled her into the taxi. The victim screamed and tried to wind the windows down and open the door to jump out but was unsuccessful. The summary also says the victim punched the defendants arm and struggled. The defendant drove his car to a deserted side-road at Ululoloa and parked it under a tree in a dark area. He then sexually assaulted the victim. This included squeezing her breast, trying to touch her private parts and trying to kiss the young girl. The police summary also says he jumped on top of her and tried to remove her clothing. The victim continued to try and open the door of the car and get out.
3. These actions were interrupted by two women passing by. One of them opened the door of the taxi allowing the victim to get out of the vehicle and go towards the shop. She went into the shop to seek help. The defendant followed her and parked in front of the shop and called out to her “alu e fai lau faatau o lea o le a faatali atu tusa lava po o le a le umi o lau faatau.” The victim sought help from the men inside the shop and they came out. When the defendant saw the men he departed hastily. The summary says the victim went home and told her mother what had happened and the matter was reported to the police.
4. When this summary of facts was read to the defendant he disputed its content. He maintained that he did not do any of these things to the girl and he sought the courts leave to change his plea from guilty to not guilty to both charges. He claimed he did not understand what he had pleaded guilty to and tried to blame his then lawyer for his guilty plea.
5. After hearing evidence including the evidence of his previous lawyer I concluded as per judgment delivered orally on the 05^th of August that the defendant did understand what he was doing and the advice given to him by his then counsel. The evidence shows he is an educated and mature working man. He is an a’oa’o in his ekalesia and he has spent a working life supporting his family. He is not a stupid or illiterate person. It was also apparent from the evidence that his only defence to the charges was a denial. That as a matter of law is not sufficient to amount to a “clear defence” which is what is required to vacate a guilty plea. The court therefore ordered his guilty to stand and it is now a question of an appropriate sentence.
6. Forcible abduction of a teenage girl is a serious offence. As is an attempt to rape a female. Abduction carries a 10 year maximum penalty by law and attempted sexual violation a 14 year maximum.
7. The victim impact report filed by the victim indicates that she suffered some physical injuries from her struggle. It also states the young girl was frightened and felt cornered and caged inside the locked taxi. It also says the only thought running through the girls mind was that hopefully the car would crash and kill her saving her from what the defendant was trying to do. Furthermore, that post offending she has become scared and in particular fears the defendant coming around their house to talk to her parents about the case. She was afraid that was a way for the defendant to see her and she fears that he would take revenge on her for referring this matter to the police. But she accepts the defendant did render an apology to her parents. It is clear from the victim impact report the offending has considerable impacted the young girl.
8. Considering all the circumstances there is no question an imprisonment penalty is required to denounce the defendants conduct as unacceptable to society, to hold him accountable for his actions, to deter him from repetition of such behaviour in the future and to send a message to all especially taxi drivers of which there are many in the Apia urban area, that if you do this to a young vulnerable teenager this is your likely fate. The attempted sexual violation charge is the more serious of the two charges. I will deal with that first.
9. Looking at the totality of the circumstances this is a case of a taxi driver abducting a young girl who was on her way to a shop. He took her to a deserted spot where he sexually assaulted her using a significant degree of force. His actions were only stopped by passersby. He then followed the complainant to the shop and tried to cover up his actions by appearing to be innocent. Waiting for the young girl to finish her shopping. Only when the men of the shop came out that he then took off.
10. The maximum as I have stated for the offence of attempted rape is 14 years. I accept the prosecution submission an imprisonment penalty greater than 7 years must be applied. In the circumstances I start sentencing at 9½ years in prison. But there are mitigating factors Faimata in your favour for which you should be given credit. For your guilty plea a deduction of 2½ years will be applied because your guilty plea has saved the courts further time and saved the girl having to come to court. That leaves a balance of 7 years.
11. I take note of your good pre-sentence report from the probation office. That report is supported by references from your Mission President and your pulenuu. You are also a first offender. To take account of those matters I deduct 6 months, leaves 6½ years.
12. There is also before the court a letter from the parents of the young girl confirming your apology and their acceptance of it. That was verified this morning by the appearance of the complainants mother before the court. For that I will deduct a further 6 months, leaves a balance of 6 years in prison. There are no other deductions Faimata to be made from your sentence.
13. On the charge of attempted rape or attempted sexual violation convicted and sentenced to 6 years in prison. Custody time awaiting sentence is to be deducted.
14. On the second charge of abduction a 6 year start point for sentence will be applied. I make similar deductions for factors in your favour reduces that to 3½ years in prison. That term is to be served concurrent to your term for the other charge. So the defendant will serve 6 years in prison minus any remand in custody time awaiting sentence.
    

JUSTICE NELSON