Police v Tofilau [2015] WSSC 36 (1 April 2015)

SUPREME COURT OF SAMOA
Police v Tofilau [2015] WSSC 36

Case name:	Police v Tofilau
Citation:	[2015] WSSC 36
Decision date:	1 April 2015
Parties:	POLICE (prosecution) v KELIKI UELESE @GERRIT TOFILAU (accused)
Hearing date(s):
File number(s):	S4379/14-S4382/14
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- As the principal charge is that of abduction with intent to have sexual connection with a girl under 16 years, the accused is convicted and sentenced to 3 years imprisonment on that charge. - On the charge of burglary, the accused is convicted and sentenced to 2 years imprisonment. - Convicted and sentenced to 3 years. Both sentences to be concurrent. The time the accused spent in custody is further deducted from this sentence
Representation:	P Chang for prosecution Accused in person
Catchwords:	Abduction with intent to have sexual connection with a child under the age of -16 – burglary – maximum penalty – guilty at earliest opportunity – aggravating and mitigating features – home invasion – age of the victim – sentence
Words and phrases:
Legislation cited:	Crimes Act 2013,s.13, s.174
Cases cited:	R v Lepper [2014] NZHC 3015. R v McVeigh [2014] NZHC 1939
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NOs: S4379/14-S4382/14

BETWEEN

P O L I C E
Prosecution

A N D

KELIKI UELESE aka GERRIT TOFILAU male of Moamoa.
Accused

Counsel:
P Chang for prosecution
Accused in person

Sentence: 1 April 2015

S E N T E N C E

The charges

1. The accused Keliki Uelese aka Gerrit Tofilau of Moamoa appears for sentence on two charges. These are: (a) one charge of abduction with intent to have sexual connection with a child under the age of 16 years, contrary to s.131 of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment, and (b) one charge of burglary, contrary to s.174 of the Act, which also carries a maximum penalty of 10 years imprisonment. To both charges, the accused pleaded guilty at the earliest opportunity.

The offending

2. As shown from the prosecution’s summary facts which was admitted by the accused, on Saturday evening 29 November 2014 at around 7pm, the accused was drinking alcohol at Moamoa with other young men he played rugby with. This was a large bottle of vodka and Vailima beers as shown from the pre-sentence report. At around 11pm that night, the drink up ended and the accused and three other men went to a nearby shop. At past midnight going on to 1am, the accused left the shop and walked home. On his way home, he passed by the victim’s house. He saw that the front door was open and the victim was sleeping by herself in the living room. When the accused saw that there was no one else but only the victim in the living room, he entered the house and lifted up the victim. He then carried her outside the house. The victim woke up and saw the accused carrying her in his arms. She fought against the accused to free herself and tried to scream but the accused put his hand on her mouth to stop her from screaming. The victim still fought hard and struggled to free herself from the accused when the accused dropped her in front of her family’s house and ran off. The victim ran back inside her family’s house and woke up her aunt who was sleeping in one of the bedrooms.

The accused

3. As shown from the pre-sentence report, the accused is a 20 year old male of Moamoa. He is unemployed and depends on his parents for financial support. He has a previous conviction in 2013 for having sexual intercourse with a girl between the age of 12 years and 16 years from which he was given a suspended sentence of 6 months. So he is no stranger to the Court system. The summary of facts states that the accused has an outstanding sexual matter but it is not clear what that sexual matter is or when it was committed. I will not therefore take that matter into account. The accused’s previous conviction card also shows that the accused has only one previous conviction and that was for his offending in 2013.
4. The accused, as already mentioned, has pleaded guilty to the charges against him at the earliest opportunity.

The victim

5. The victim is 11 years old and is still attending school. What the accused had done to her must have been a terrifying experience for her. It was fortunate, however, that she had the courage to fight back at the accused and be able to free herself before something worse could have happened to her. The victim impact report shows that as a consequence of this incident, she now fears young men like the accused even in her own home. She had thought that she was safe in her own home but this incident has shown that she may not be so. Since this incident, she has been sensitive and alert to what is happening around her all the time. In other words, she no longer feels completely safe in her own home.
6. The victim impact report also shows that the mother of the victim has been affected by this incident. She now ensures that the doors of her family’s house are always locked. She also fears for the safety of her daughter and wakes up at night about every ten minutes to check on her daughter. She also now feels paranoid and sometimes anxious because it was inside her own home that the accused came and got her daughter.

Aggravating features relating to the offending

(a) Home invasion at night

7. This incident occurred at around 1am at night when the accused entered the house of the victim’s family, lifted up the victim, and carried her out of the house.

(b) Vulnerability of victim

8. The victim was asleep by herself in the sitting room of her family’s home when the accused entered the house, lifted her up, and carried her out of the house.

(c) Age of victim

9. The victim is 11 years old and still attending school.

(d) Impact of offending

10. As a result of this offending, the victim no longer feels completely safe in her own home. She also now fears young men like the accused and has become sensitive and alert all the time to what is happening around her. The victim’s mother has also been affected. She now fears for the safety of her daughter and wakes up about every ten minutes at night to check on her daughter.
11. I do not consider that the charge of burglary, which is for entering the house of the victim’s family without authority and with intent to commit a crime therein, adds anything to the criminality of the accused’s offending which is primarily that of abduction with intent to have sexual connection with a girl under the age of 16 years. The burglary was an integral part of the abduction that was committed by the accused and is already covered under the aggravating feature of home invasion at night.

Aggravating feature relating to the accused as offender

12. The accused is not a first offender. He has a previous conviction in 2013 for having sexual intercourse with a girl between the age of 12 years and 16 years for which he was given a suspended sentence of 6 months.

Mitigating feature relating to the accused as offender

13. The only mitigating feature relating to the accused as offender is his guilty plea at the earliest opportunity. I would not consider the accused’s relatively young age as a mitigating feature personal to the accused. That was done when the accused was sentenced in 2013 but he does not appear to have learnt any lesson.

Discussion

14. For present purposes, I will take into account the sentencing principles of denunciation, deterrence, and the need for the accused to be held accountable for his actions. This is also a serious type of offence in the eyes of Samoan society. It is often referred to as “moetolo”.
15. The victim was, however, fortunate that the accused did not achieve what he intended to do to her which must have been to have sexual connection with her. But that was due to her determined resistance and not because of any mercy shown on her by the accused.
16. Having regard to the sentencing principles to which I have referred and the aggravating features of the offending, I will take 4 years as the starting point for sentence as recommended by the prosecution. I will give an uplift of 6 months for the previous conviction. That increases the starting point to 4½ years. I will then deduct 1/3 for the early guilty plea. That leaves 3 years.
17. For some New Zealand sentencing decisions on the charge of abduction with intent to have sexual connection with the victim that may be relevant to passing sentence under the relevant provisions of our Crimes Act 2013, I refer to R v McVeigh [2014] NZHC 1939 and R v Lepper [2014] NZHC 3015.

The result

18. As the principal charge is that of abduction with intent to have sexual connection with a girl under 16 years, the accused is convicted and sentenced to 3 years imprisonment on that charge.
19. On the charge of burglary, the accused is convicted and sentenced to 2 years imprisonment.
20. Both sentences to be concurrent so that effectively the accused will serve an end sentence of 3 years imprisonment. The time the accused has already spent in custody pending the outcome of this matter is to be further deducted from that sentence.

Honourable Chief Justice