Police v Tupo [2017] WSSC 114 (9 August 2017)

THE SUPREME COURT OF SAMOA
Police v Tupo [2017] WSSC 114

Case name:	Police v Tupo
Citation:	[2017] WSSC 114
Sentence date:	9 August 2017
Parties:	POLICE (Prosecution) v PUPULA TUPO male of Vaisigano Accused
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Tuala Warren
On appeal from:
Order:	- The accused is convicted of attempted sexual violation and sentenced to 2 years and 8 months imprisonment. - Any time spent in custody to be deducted
Representation:	F Ioane for Prosecution Accused in person
Catchwords:	Attempted Sexual Violation
Words and phrases:
Legislation cited:	Crimes Act 2013 s.53(1)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

PUPULA TUPO male of Vaisigano
Accused

Counsel:
F Ioane for Prosecution
Accused in person

Sentence: 9 August 2017

S E N T E N C E

The charge

1. The accused appears for sentence on one charge of attempted sexual violation pursuant to s.53 (1) of the Crimes Act 2013, which carries a maximum penalty of 14 years imprisonment.
2. He pleaded guilty to the charge on 10 July 2017.

The offending

3. The Prosecution summary of facts admitted by the accused says that on 1 June 2017, between 8-8.30 pm the victim was walking across the bridge at Vaisigano towards Matautu. The accused was standing at the corner of the bridge. As the victim walked past the accused, he grabbed her neck from the back and tried to drag her under the bridge. The victim fell to the ground and screamed. The accused covered her mouth with his hand. As the accused was trying to drag the victim under the bridge, the victim grabbed hold of a metal pipe on the side of the bridge and held on which prevented the accused from dragging her under the bridge.
4. The accused then tried to pull down the victim’s shorts but the victim screamed again. Security guards at Sheraton heard the screams and ran to the victim. The accused had fled the scene.
5. He has previous convictions for violent offending which are not sexual in nature.

The accused

6. As shown in the pre-sentence report, the accused is 22 years old and works as a casual worker. He lives at Vaisigano.
7. According to the accused, on the night of the offending he was at RSA nightclub where he consumed a significant amount of alcohol. He then walked home along the seawall. He met the victim walking in the opposite direction. He admitted being sexually attracted to the victim and that is why he tried to pull her under the bridge.

The victim

8. The victim is 18 years of Vaimoso and Fagatogo American Samoa.
9. There has been no reconciliation.

Aggravating features of the offending

10. It is aggravating that there was actual violence involved in this offending. The accused grabbed the victim’s neck from the back and tried to drag her under the bridge. He also tried to remove her shorts.
11. The victim was particularly vulnerable as she was walking alone at night. He attacked her and tried to get her alone under the bridge. She was walking in a public place and would not have expected to be attacked. It was such a random and unexpected attack on an unsuspecting victim. If it were not for the victim’s strength and actions, the unimaginable may have happened to this young victim.

Mitigating Factors

12. I take into account his early guilty plea.
13. It is not a mitigating factor according to section 7(3) of the Sentencing Act 2016 that the defendant was affected by the voluntary consumption or use of alcohol at the time of committing the offence.

Discussion

14. Prosecution submits that a starting point of 5 years imprisonment is appropriate.
    
15. This offending was opportunistic by an intoxicated young man. Too often alcohol has been the cause of sexual offending. A stern message must be sent to the accused and other like-minded people that alcohol is no excuse for this type of blatant sexual offending. He got to a point of intoxication whereby he tried to rape this young victim in a public place with no regard for her or for others around.
16. It is people like the accused who make our streets unsafe. This offending has wider public interest implications. We as a country pride ourselves on public safety as opposed to other countries. Increasingly this type of behaviour is threatening that sense of safety and security. The sentence today is an effort to ensure that our streets remain safe for our community, in particular for our girls and women who have a legitimate expectation to be able to walk anywhere day or night without being attacked.
17. The sentence imposed today is a sentence of deterrence and reinforcement of the protection of the community.
18. Having therefore considered the aggravating features relating to this offending, I take the starting point at 3 ½ years imprisonment. I will add 6 months for the accused’s previous convictions for violent offending. That brings it to 4 years imprisonment. The only deduction I make is 1/3 or 16 months for his early guilty plea.

The result

19. The accused is convicted of attempted sexual violation and sentenced to 2 years and 8 months imprisonment.
20. Any time spent in custody to be deducted.
    

JUSTICE TAFAOIMALO TUALA WARREN