Police v Kalolo [2015] WSSC 27 (25 March 2015)

SUPREME COURT OF SAMOA
Police v Kalolo and Matau [2015] WSSC 27

Case name:	Police v Kalolo and Matau
Citation:	[2015] WSSC 27
Decision date:	25 March 2015
Parties:	POLICE (prosecution) UILI KALOLO and PATI MATAU (accused) both males of Lona, Fagaloa.
Hearing date(s):
File number(s):	S4151/14-S4154/14
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Uili will serve a total sentence of 6 years and 10 months imprisonment. - Pati will serve a total sentence of 4 years and 2 months imprisonment. - Time that each of the accused has already spent in custody is further deducted from their total sentences
Representation:	L Su’a-Mailo for prosecution Accused in person
Catchwords:	attempted sexual violation – burglary – maximum penalty – sexual violation by rape - sexual violation by unlawful sexual connection – aggravating and mitigating features - vulnerability of the victim – home invasion at night- impact on victim- pre-meditation – previous good character – apologies and reconciliation – penalty by the village council – aggravating features relating to the offending – sentence – imprisonment terms
Words and phrases:	“sexual violation”-
Legislation cited:	Crimes Act 2013 s.53, s.174
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S4151/14-S4154/14

BETWEEN

P O L I C E
Prosecution

A N D

UILI KALOLO and PATI MATA’U both males of Lona, Fagaloa.
Accused

Counsel:
Su’a-Mailo for prosecution
Accused in person

Sentence: 25 March 2015

S E N T E N C E

The charges

1. The accused Uili Kalolo and Pati Mata’u, both of Lona, Fagaloa, appear for sentence on one joint charge of attempted sexual violation, contrary to s.53 of the Crimes Act 2013, which carries a maximum penalty of 14 years imprisonment, and one joint charge of burglary, contrary to s.174 of the Act, which carries a maximum penalty of 10 years imprisonment.
2. It would be helpful with charges of sexual violation if the prosecution were to specify in the charge the type of sexual violation it is relying on because the expression “sexual violation” is defined in s.49(1) to mean rape or unlawful sexual connection. This is important because: (a) in terms of s.52, the maximum penalty of sexual violation by rape is life imprisonment and the maximum penalty for sexual violation by unlawful sexual connection is 14 years imprisonment; (b) it informs the accused of the type of sexual violation he is charged with so that he can prepare an appropriate response; and (c) it makes the prosecution clear in mind about what it is alleging against the accused and has to prove beyond reasonable doubt if there is a not guilty plea.
3. Pursuant to the prosecution’s memorandum of 16 March 2015, the accused Uili Kalolo also appears for sentence on the individual charges of sexual violation, presumably, by rape, contrary to s.49 (1)(a), which carries a maximum penalty of life imprisonment pursuant to s.52(1), and burglary, contrary to s.174, which carries a maximum penalty of 10 years imprisonment.
4. Pursuant to the same memorandum by the prosecution of 16 March 2015, the accused Pati Matau also appears for sentence on the individual charges of sexual violation, presumably, by unlawful sexual connection, contrary to s.49(1)(b) and s.50 (a) (i), which carries a maximum penalty of 14 years imprisonment pursuant to s.52(2), and indecent assault, contrary to s.60, which carries a maximum penalty of 5 years imprisonment.
5. To all charges, the accused pleaded guilty at the earliest opportunity.

The offending

6. On 21 November 2014, the two accused started drinking around 5pm with a friend. Between 11pm and 12 midnight, the accused and their friend finished drinking and left to go home. However, instead of going home, the accused stopped at the house of another friend for short while. The accused Uili then told the accused Pati to take the lead home. Instead of going home, Uili diverted to the house of the victim and her husband who are a married couple. At that time, the victim and her husband were fast asleep; they, too, were both drunk as they had been drinking that evening.
7. When Uili arrived at the victim’s house, he opened the back door and went inside. He then entered the bedroom of the victim and her husband and had sexual intercourse with the victim while the victim and her husband were still fast asleep. After sexual intercourse with the victim, Uili left the victim’s house with just his t-shirt and no pants. He went to the house of a friend and asked that friend to help him look for his pants and cell-phone. Uili then returned to the victim’s house accompanied by his friend. He entered the victim’s house again and looked for his pants and cell-phone. After he found his pants and cell-phone, he came out of the house and left with his friend. On their way, they met up with the accused Pati. Uili then asked Pati if he wanted to have sex with the victim. Pati agreed.
8. Uili and Pati then went to the victim’s house. Uili remained outside the victim’s house to keep watch while Pati entered the house. Pati then went to the room where the victim and her husband were sleeping, sat beside the victim, and inserted two fingers inside her vagina. He also caressed the victim’s breasts and licked her nipples. This aroused the victim from her sleep thinking that it was her husband touching her. It was not until she felt pain on her vagina that she opened her eyes and to her shock she saw that it was not her husband but an intruder. She woke up her husband and told him that someone was inside their bedroom. At that time, Pati ran out of the bedroom and the house.

The accused Uili Kalolo

9. The accused Uili is aged 20 years. He is single and unemployed. He finished school at Year 12. He stays home and assists his family with household chores and their kava plantation which is their family’s main source of income.
10. Uili is a first offender and the good testimonials from his father, the pastor of his church, and the pulenuu of his village all show that he had been a person of good character prior to the commission of these offences.
11. Uili and the victim’s husband are members of the same family. This matter has been reconciled and settled within the family. Uili and his parents have also apologised to the victim, her husband, and her husband’s parents and the apology was accepted. The victim and her mother in law told the probation service that they have forgiven Uili. The victim even appeared before the Court and asked for this matter against Uili and Pati to be withdrawn as it has been settled within their family.
12. Uili and Pati have also been penalised by the village council of Lona, Fagaloa, and their families presented $1,000 cash and one large fine mat to the village council. When this matter was called for mention, the pulenuu of Lona, Fagaloa, appeared and pleaded for Uili and Pati to be granted bail. It is a sign that both accused have the support of their village.

The accused Pati

13. The accused Pati Mata’u is aged 35 years. He is also single. He finished school at Year 11 and has been employed on his uncle’s kava plantation and cattle farm. His parents divorced when he was young and he has been living and looked after by his paternal uncle as his own son up to now.
14. Pati is a first offender and the testimonials from the victim’s mother in law, the pastor of his church, and the pulenuu of his village all show that Pati had been a person of good character prior to the commission of these offences. His pre-sentence report also shows that he is supported by his uncle.
15. The pre-sentence report on Pati further shows that Pati and the victim’s husband are related and this matter has been reconciled and settled within the family. Pati and his parents have apologised to the victim and her husband at a family meeting and the apology was accepted. He has also been forgiven by the victim and her husband. The victim, as earlier mentioned, appeared before the Court and asked for this matter to be withdrawn as it has been settled within the family.
16. Uili and Pati as already mentioned, have also been penalised by the village council of Lona, Fagaloa, and their families presented $1,000 cash and large fine mat.

The victim

17. The victim is 20 years of age. As it appears from the victim impact report, this incident affected the victim’s relationship with her side of the family because people in the village spread rumours that she started this whole thing. It disappointed and embarrassed her parents so that she had to go to her parents and explain to them what had actually happened. Since this incident, the victim hardly leaves her house as she is ashamed of what happened to her and she knows that people of the village are spreading rumours that she stared what happened.
18. The victim impact report also confirms that the two accused and their parents have apologised to the parents of the victim’s husband and the apologies were accepted. The victim has also forgiven the accused.

The aggravating features relating to the offending

19. The following are the aggravating features of this offending.

(a) Vulnerability of the victim

20. The victim was in a vulnerable position when she was sexually violated by the two accused. She was drunk and fast asleep. Likewise her husband.

(b) Home invasion at night

21. This offending is a serious invasion of the privacy of the victim’s home and bedroom while she was asleep with her husband. The accused Uili entered the victim’s home and bedroom twice. The accused Pati entered the victim’s house and bedroom once. I must say that every person is entitled to feel safe in the privacy of his or her home, particularly his or her bedroom. In this case that safety and privacy were seriously violated by the accused.

(c) Family relationship

22. The victim’s husband and the accused are relatives. What happened was a breach of family protocol (soli aiga). The conduct of the two accused is also the type of conduct that is often referred to in our fa’aSamoa as “moetolo.” This is a serious matter in Samoan custom.

(d) Pre-meditation

23. The actions of the accused, particularly those of Uili, show a high level of pre-meditation. Uili not only entered the victim’s house twice but he also instigated Pati to have sexual intercourse with the victim. He then remained on watch outside of the house while Pati was sexually violating the victim.

(e) Impact on victim

24. This incident affected the victim’s parents and their relationship with the victim. The victim also hardly goes out of her house now because she feels embarrassed by what happened to her.

The mitigating features relating to the accused as offenders

(a) Previous good character

25. Each of the accused is a first offender and had been a person of good character prior to this offending as shown from their good testimonials.

(b) Apologies and reconciliation

26. Each of the accused and his parents have apologised to the parents of the victim’s husband as well as to the victim and her husband. The apologies were accepted and the victim and her husband have forgiven the accused. This matter is now reconciled and settled within the family.

(c) Penalty by the village council

27. The accused have been penalised by the village council of Lona, Fagaloa, and their families presented $1,000 cash and a large fine mat.

(d) Wishes of the victim

28. I do not propose to give weight to the wishes of the victim to have the charges against the accused withdrawn.

Discussion

29. As there are several charges against each accused, I will apply the totality principle and look at the offending on the whole. I will also bear in mind the individual involvement of each accused in this offending as the level of participation of Uili was much greater than that of Pati. I will deal with Uili first and then with Pati.
30. In respect of the accused Uili, I will start with sexual violation by rape as that is the lead offence against him. Having regard to the aggravating features relating to the offending and the need for deterrence for this type of offending, I will take 13 years as the starting point for sentence. I will deduct one year for previous good character. That leaves 12 years. I will deduct another one year for the apology as well as the reconciliation and settlement of this matter within the family. That leaves 11 years. I will deduct 9 months for the penalty imposed by the village council. That leaves 10 years and 3 months. I will deduct a further 1/3 or 3 years and 5 months for the early guilty plea. That leaves 6 years and 10 months.

The result in respect of Uili

31. The accused Uili is sentenced to 6 years and 10 months imprisonment on the charge of sexual violation by rape.
32. On the charge of attempted sexual violation, the accused Uili is sentenced to 6 years imprisonment.
33. On each of the charges of burglary against Uili, he is sentenced to 3 years imprisonment.
34. All sentences to be concurrent meaning that Uili will serve a total sentence of 6 years and 10 months imprisonment.
35. In respect of the accused Pati, whose level of involvement in this offending was much less than that of the accused Uili, the lead offence is attempted sexual violation. Having regard to the aggravating features relating to the offending and the need for deterrence, I will take 9 years as the starting point for sentence. I will deduct one year for previous good character. That leaves 8 years. I will deduct another one year for the apology as well as the reconciliation and settlement of this matter within the family. That leaves 7 years. I will deduct 9 months for the penalty imposed by the village council. That leaves 6 years and 3 months. I will deduct a further 1/3 or 2 years and one month for the early guilty plea. That leaves 4 years and 2 months.

The result in respect of Pati

36. The accused Pati is sentenced to 4 years and 2 months imprisonment on the charge of attempted sexual violation, presumably, by rape.
37. On the charge of sexual violation by unlawful sexual connection, presumably, for inserting his two fingers inside the victim’s vagina, the accused Pati is also sentenced to 4 years and 2 months imprisonment.
38. On the charge of indecent assault, presumably, for caressing the victim’s breasts and sucking her nipples, Pati is sentenced to 2 years imprisonment.
39. On the charge of burglary, Pati is sentenced to 18 months imprisonment.
40. All sentences are to be concurrent meaning that Pati will serve a total sentence of 4 years and 2 months imprisonment.

Time already spent in custody

41. The time that each of the accused has already spent in custody is to be further deducted from their total sentences.

Honourable Chief Justice