Police v Fetuao [2015] WSSC 91 (31 August 2015)

IN THE SUPREME COURT OF SAMOA
Police v Fetuao, Wikiteoi, Ropeti, Alaiasa, Iose and Talataina [2015] WSSC 91

Case name:	Police v Fetuao, Wikiteoi, Ropeti, Alaiasa, Iose and Talataina
Citation:	[2015] WSSC 91
Decision date:	31 August 2015
Parties:	Police (prosecution_ EVAN FOAIMONUUESE FETUAO, male of Falefa, FAATAFA WIKITEOI, male of Falefa, FAGAESEA ROPETI male of Falefa, DAVID ALAIASA male of Falefa, SIMON IOSE, male of Falefa,and MANATUAOLEALOFA TALATAINA, male of Falefa (defendants)
Hearing date(s):	27, 28,29,30 April 2015
File number(s):	S1018/13, S1014/13, S1017/13, S1563/13, S1564/13, S1565/13, S1566/13
Jurisdiction:	Criminal
Place of delivery:	Supreme Court, Mulinuu
Judge(s):	Justice Vaai
On appeal from:
Order:	In summary the accused Evan is sentenced to 15 years imprisonment. Fagaesea is sentenced to 12 years and 6 months. Faátafa is sentenced to 11 years. David is sentenced to 7 years. Simon is sentenced to 7 years. Manatua is sentenced to 7 years. Time spent in custody to be deducted.
Representation:	P Chang and M Lui for prosecution T Leavai for Evan Foaimanuuese and Faatafa Wikiteoi K Enari for Fagaesea Ropeti J Brunt for David Alaiasa C Vaai for Simon Iose D Roma for Manatuaolealofa Talataina
Catchwords:	Rape – attempt to commit sexual violation – unlawful sexual connection – indecent assault – pleaded guilty – found guilty by panel of assessors – banishment order – ifoga – convicted and imprisonment sentence..
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

EVAN FOAIMONUUESE FETUAO, male of Falefa, FAATAFA WIKITEOI, male of Falefa, FAGAESEA ROPETI male of Falefa, DAVID ALAIASA male of Falefa, SIMON IOSE, male of Falefa,and MANATUAOLEALOFA TALATAINA, male of Falefa
Defendants

Counsel:
P Chang and M Lui for prosecution
T Leavai for Evan Foaimanuuese and Faatafa Wikiteoi
K Enari for Fagaesea Ropeti
J Brunt for David Alaiasa
C Vaai for Simon Iose
D Roma for Manatuaolealofa Talataina

Sentence: 31 August 2015

S E N T E N C E

Introduction

1. The accuseds Evan Foaimonuuese (Evan), Simon Iese (Simon) and David Alaiasa (David) were found guilty by the panel of assessors, as principals and as parties of the crimes of rape, attempt to commit sexual violation, unlawful sexual connection and indecent assault.
2. The accuseds Faatafa Wikiteoi (Faátafa) and Fagaesea Ropeti (Fagaesea) both pleaded guilty to one count of rape while the accused Manatuaolealofa Talataina (Manatua) also pleaded guilty to being a party to the same rape charge.
3. All accuseds now appear for sentence.

The offending

4. The offending took place at a 21^st Birthday party on a Saturday afternoon at the village of Falefa at the home of the birthday boy. All the accused as well as the 18 year old complainant were guests; all are from the same village, well acquainted and all of them were drinking alcohol. The complainant in particular got very drunk and wanted to go home in the late afternoon. She asked defendants Evan and Fagaesea to take her home. Instead of leading her to the main road at the front of the house where the birthday party was held the two accuseds took her to the house at the rear and led her to one of the bedrooms and laid her down on the floor. They were observed by one Atafu Esekia who was watching from outside the window.
5. After they undressed the complainant, she was held down by Fagaesea while Evan raped her. She was then lifted and placed on a table where Fagaesea raped her while she was being held down by Evan. Evan was also seen licking the complainant’s vagina. Both of them were also witnessed by Atafu pouring vodka into the complainant’s mouth. Through her state of intoxication she blacked out at times and offered virtually no resistance to the assault.
6. From this first incident the accused Evan was found guilty by assessors of the offences of rape and indecent assault. Fagaesea pleaded guilty to rape.
7. The second incident witnessed by one Steve Eliu who was also a guest at the birthday party, was a continuation of the first incident. Words quickly spread that the complainant was in the room with the boys after the accused Evan came out and invited the other accuseds into the room. Accuseds Manatua, Simon, Faatafa, David and others all went into the room.
8. Steve Eliu (Steve) was on his way to the bathroom when the accused David came outside of the room and told Steve about the complainant and the boys in the room. David then returned to the room. Steve heard a female muffled scream from the room on his way back from the bathroom. He knocked on the door three times before David opened it. Steve saw Faatafa on top of the complainant raping the complainant. Evan then pushed away Faatafa and Evan raped the complainant, while another person rubbed his penis against her mouth. Manatua then pushed away Evan. Simon was seen poking his fingers inside the girl’s vagina. David was also seen kissing the complainant’s mouth when she tried to scream. Manatua tried to get on top of the complainant when Steve stepped in and pushed Manatua away. David pulled Steve’s shirt sleeve. Steve told them off and they all left the room.
9. From this second incident the accused Evan was found guilty by assessors of the charge of rape. Faatafa pleaded guilty to the rape charge. Manatua pleaded guilty to being a party to the rape. Accuseds David and Simon were found guilty of being parties to rape.
10. Accused Simon was also found guilty as principal offender to the charge of unlawful sexual connection. The other two accuseds Evan and David were found guilty as parties.
11. Accused David was also found guilty as principal to the charge of indecent assault. Simon and Evan were found guilty as parties.
12. Accuseds Evan, Simon and David were also found guilty as parties to the offence of attempting to commit sexual violation.

The offenders

13. Accused Evan was 17 years at the time offending and a student at Maluafou College and living with his parents at Falefa. Accused Faatafa was 19 years and a student at Chanel College. Accused Fagaesea was 19 years and a student at Anoamaá College. Accused Manatua was 20 years and a student at the National University of Samoa. David was 19 years and a student at Chanel College. Simon was 19 years and was living at home.
14. All accuseds were living with their families. Their village and religious leaders through their written testimonials spoke very favourably and highly of them. Despite the gravity of the offending by the accuseds their families, village and religious leaders continue to show their immense support as they seek the leniency of the court. Easy and uncontrolled availability of alcohol was a significant factor in the offending.
15. Except for the accused Simon who was not attending school at the time, the others had the ability to advance and succeed in their respective educational and sporting pursuits.

Submissions by the Prosecution

16. The prosecution in its detailed submissions submitted quite correctly the aggravating features of the offending. It has also provided a table of sentences imposed for similar offending in the past. For offenders Evan and Fagaesea and Faatafa the prosecution submitted that for the offence of rape a custodial sentence to commence at 18 years should be considered. As for the remaining accuseds it was submitted that a diminished starting point should be considered depending on their lesser involvements.

Submissions by the Accuseds

17. All counsels for the accuseds acknowledged the gravity and seriousness of the offending by the accuseds. Despite that however it was submitted that non custodial sentences or lesser terms of imprisonment should be imposed to reflect the young ages of the accuseds, their genuine remorse, their previous impeccable characters, their potentional to pursue academic and sporting careers and their abilities to contribute to their families, villages and society. Custodial sentences will do more harm than good and they should be given a second chance.
18. For the accused Evan it was submitted that a custodial sentence of 4 to 5 years should be considered. For the defendants David, Faatafa, Fagaesea and Manatua it was submitted that a non custodial sentences be imposed. For the accused Simon a custodial sentence of 6 to 10 months was submitted.

Discussion

19. One of the accused is related to the complainant, some were at college with her, others were in the same youth group, they were all from the same village, in fact they were like brothers to her. She thought she was in safe hands when she requested Evan and Fagaesea to take her home. The Victim Impact report described some of her feelings as:
    • (i) Angry and betrayed

(ii) Sad every time she talks about it because she felt that they took all that she held dear - her virginity and dignity

(iii) Depressed, ashamed, and confused about what happened and why she was treated in such a merciless manner.
(iv) Undoubtedly this incident has had a severe impact on the young girl.

20. Instead of escorting the complainant to her home she was enticed into the room. Her extreme state of intoxication was taken advantage of. She was held down. She was raped by both Evan and Fagaesea. Vodka was poured into her mouth. Evan then walked outside and invited others to go into the room.
21. Others joined in and enthusiastically engaged in their various individual acts. Although some of the acts taken in isolation would not be labelled as very grave, their totality in the atmosphere of the offending on a young helpless female, as well the encouragement they gave to each other makes this offending one of the worst instance of rape by a group of offenders to come before this court.
22. It was an intrusion of the gravest kind into the bodily rights the young girl as a human being. To perpetrate this kind of conduct was also an upfront to all right thinking Samoans. The element of domination and degradation of a young virgin and helpless girl, treated as the object of utter male perverted lust is beyond comprehension. Both the girl and Samoan Society have been treated with contempt. Civilised standard of human decency have been rejected through mutual encouragement by each of the accused. There were obviously other indecencies committed on the complainant before Steve entered the room and put a stop to the assault.
23. One of the disturbing features is the young ages of all the accuseds ranging from 17 to 20. Their easy and unlimited access to alcohol is also another disturbing feature.
24. Regrettably their personal circumstances can do little to substantially reduce the sentences for crimes of this gravity. Nor can the effect on their future prospects, and their families be allowed to count for much. It is a heavy blow to responsible parents and supporting families but those parents and families must accept that similar offending against their own young daughters has no place in our society.
25. For the first count of rape against Evan and Fagaesea, bearing in mind the aggravating features of their offending I consider 20 years as the appropriate starting point. For their young ages I deduct 3 years. I will also deduct 18 months for the banishment orders issued by the village council. Another 6 months is deducted for the traditional ifoga. For the accused Fagaesea I will deduct another 2 ½ years for his guilty plea. The accused Evan is sentenced to 15 years imprisonment less the time he spent in custody. The accused Fagaesea is sentenced to 12 years and 6 months imprisonment less time spent in custody.
26. For the count of indecent assault Evan is sentenced to 18 months imprisonment to be served concurrently with the rape sentence.
27. For the second count of rape against Evan and the count of rape against Faatafa I consider the culpability to be less than the first rape and accordingly I take 18 years as the appropriate starting point. I deduct 3 years for their young ages, 18 months for the village banishment orders and 6 months for the ifoga. For the accused Faatafa I also deduct 2 years for the guilty plea. The accused Faatafa is sentenced to 11 years imprisonment less time spent in custody. The accused Evan is sentenced to 13 years imprisonment to be served concurrently with the other rape sentence.
28. The accused Manatua would have succeeded in his effort to rape the complainant except for the intervention by Steve. Manatua did not offer any resistance when he was stopped and the entire assault on the complainant ceased when Manatua was pushed away. His culpability as a party to the rape must be geared from his attempt to rape which mirrored his active participation in the incident. Attempt to rape invites a maximum penalty of 14 years. But the circumstances under which Manatua attempted to rape were grave and more serious than other attempted rapes which have come before the court. A much reduced starting is warranted than the case of Evan. I consider 14 years as the appropriate starting point. For his young age I deduct 3 years. Eighteen months and six months are deducted for the banishment order and ifoga respectively. Two years is also deducted for his guilty plea. He is sentenced to 7 years imprisonment less time spent in custody.
29. The unlawful sexual connection and indecent assault charges against the two accuseds Simon and David normally do not warrant custodial sentences. But as alluded to before the circumstances and the environment in which the indecencies were committed must determine the appropriate punishment. When the complainant tried to scream David suppressed it by kissing her on the mouth whilst others were committing acts of indecencies on her. Simon also poked his fingers insider her vagina when others had raped or about to rape her. The culpabilities of both should be the same and should be comparable to the accused Manatua. I consider 12 years as the appropriate starting point. For their young ages I deduct 3 years. Deduction of 18 months is made for banishment order and 6 months for the ifoga. They will each serve 7 years imprisonment less time spent in custody for the offences of being parties to rape.
30. For the offence of unlawful sexual connection against Simon as the principal he is sentenced to 18 months imprisonment to be served concurrently with the other sentence. The accuseds Evan and David are also sentenced to 6 months imprisonment as parties. Sentences to be served concurrently with the other sentences imposed.
31. For the offence of indecent assault against David as principal he is sentenced to 6 months imprisonment to be served concurrent with the other sentences. David and Evan as parties are sentenced to 3 months imprisonment to be concurrent with the other sentences.
32. For the offence of being parties to the attempted sexual violation the three accused Evan, David and Simon are sentenced to 2 years imprisonment to be served concurrently with the other sentences.
33. In summary the accused Evan is sentenced to 15 years imprisonment. Fagaesea is sentenced to 12 years and 6 months. Faátafa is sentenced to 11 years. David is sentenced to 7 years. Simon is sentenced to 7 years. Manatua is sentenced to 7 years. Time spent in custody to be deducted.
    

JUSTICE VAAI