Police v Uliao [2017] WSSC 129 (24 October 2017)

SUPREME COURT OF SAMOA
Police v Uliao [2017] WSSC 129

Case name:	Police v Uliao
Citation:	[2017] WSSC 129
Decision date:	24 October 2017
Parties:	POLICE (Prosecution) and VILIAMU @ SANJOSE ULIAO male of Matautu Lefaga and Lotopa. (Defendant)
Hearing date(s):	-
File number(s):	S978/17, S979/17
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	In respect of the charge of sexual violation by way of rape convicted and sentenced to 10 years in prison. Any remand in custody time to be deducted. In respect of the other charge of indecent assault that is a superfluous charge, that is dismissed.
Representation:	A Matalasi for prosecution Defendant unrepresented
Catchwords:	Sexual violation – indecent assault – suppression order – consensual sex – sexual intercourse – maximum penalty – life imprisonment – sentencing bands.
Words and phrases:
Legislation cited:
Cases cited:	Key v Police [2013] WSCA 3
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

VILIAMU @ SANJOSE ULIAO male of Matautu Lefaga and Lotopa.
Defendant

Counsel:
A Matalasi for prosecution
Defendant unrepresented

Sentence: 24 October 2017

SENTENCE

1. Viliamu has pleaded guilty to one count of sexual violation and one count of indecent assault. A suppression order will also issue in respect of the victims name and other details and this will extend to her place of work as well as the defendants place of work.
2. The police summary of facts indicates the defendant is a 24 year old male married with children. The victim is a 25 year old female and she worked together with the defendant and had worked together with the defendant for a considerable length of time.
3. On Saturday, 01^st of June the place of employment of the victim and the defendant had a party. Present at the party were not only the victim and the defendant but also the victims boyfriend and some of their friends. The party started Saturday afternoon and went into the early hours of Sunday morning. At some stage after midnight, the victim had enough to drink and decided to retire for the night. She went to her bedroom and fell asleep on the bed. Before she fell asleep her boyfriend joined her and the two of them had consensual sex. After which the boyfriend returned to the party leaving the victim alone in the bedroom. The victim was naked except for the sheet covering her body.
4. At some stage thereafter the defendant went to the victims room entered it and saw the victim asleep on the bed with parts of her body showing. The defendant told the probation office that the sight of the half naked victim aroused him and he wanted to have sex with her. He approached the bed, undressed, got into bed and inserted his penis into the victims private part and had sexual intercourse.
5. After some time the victim began to wake from her sleep and at first thought it was her boyfriend. But as she started to feel the defendants body she realized this was not her boyfriend on top of her. She tried to push him off but the defendant persisted and continued with his actions.
6. In her evidence she said she then began kicking the defendant and it was the kicking that caused him to become dislodged and fall off the bed. Her boyfriend was attracted by the commotion and when the light turned on everyone discovered defendant. She told him off because she was surprised that he would do such a thing to her without her consent. She cried but said the defendant did not seem to care too much about what he had just done. In the morning when the alcohol wore off she confronted the defendant but again he did not apologise for his behaviour. This made her even more angry and she reported the matter to the Police.
7. The reason why the victim had to testify was because originally when the summary of facts was put to the defendant he objected to certain portions thereof. That necessitated the evidence of the victim and the evidence of an eye-witness being called.
8. Well you may not fully appreciate the gravity of what you did Viliamu but I can assure you the law does not treat rape of a woman lightly. The maximum penalty for rape is life imprisonment. Sentencing for rape is governed by the sentencing bands set down in Key v Police [2013] WSCA 3 by the Court of Appeal where they outlined four Bands for setting starting points for sentencing:
   • - Band 1: 8 to 10 years;
   • - Band 2: 9 to 15 years;
   • - Band 3: 14 to 20 years; and
   • - Band 4: 19 to life imprisonment.
9. In determining where your case fits I take into account the vulnerability of the complainant who had been drinking and was asleep alone in her room when you entered. There also appears to be some pre-meditation on your part because you were drinking with the girl, you knew her condition and state of intoxication. When you saw her asleep on the bed, you saw an opportunity and you took it.
10. Prosecution have also suggested there has been a breach of trust based on the fact that you and the girl were work mates. I am not sure that is a significant factor but it is clear you were work mates for a long time and she would have been entitled to feel safe hanging around with you.
11. What is a clear aggravating factor is the impact this offending has had on the girl. Her victim impact report states things like she has yet to find closure. She talks about being unhappy and depressed because she is always thinking about what you did and she is embarrassed to face people because she senses they are talking behind her back about what happened.
12. When she saw you in court it reminded her of the incident and she only wanted to retaliate and punish you for what she is going through. She is particularly hurt because she has known you for years and did not think you would do something like this to her. She has always treated you like part of her own family.
13. The report says she and her partner almost split up as a result of your actions, however they have managed to work through these difficult times and her partner has become very supportive.
14. Weighing all these matters I agree with the prosecution this case belongs in the B-2 range but in the mid-range thereof. I therefore start sentencing at 12 years in prison.
15. For deductions from that start point Viliamu you have a good pre-sentence report, it talks of your service to your aiga. There is also a testimonial from your faifeau referring to your service to the aulotu in particular the autalavou youth group. To reflect that and also your clean police record I deduct 6 months, leaves 11½ years.
16. Defendants are also usually given a deduction for an apology and reconciliation but the complainant clearly is not impressed with your apology. In her victim impact report she says you approached her at court to apologise but she thinks the apology was not genuine because you were smiling and it all seemed like a joke to you. She did tell the probation office however that your mother approached her and apologised on your behalf, and there were also approaches from other members of the family. I will accordingly make a nominal deduction of 3 months, leaves 11¼ years.
17. You are entitled to a deduction Viliamu for your guilty plea. But your objection to the summary of facts meant that the victim and an eyewitness had to testify. And there was no real basis to your objection Viliamu, the victims evidence was compelling and credible as was that of the eyewitness. This all dilutes the value of your guilty plea and accordingly I cannot give you the full deduction but I will deduct 1¼ years from your sentence, leaves 10 years.
18. In respect of the charge of sexual violation by way of rape convicted and sentenced to 10 years in prison. Any remand in custody time to be deducted.
19. In respect of the other charge of indecent assault that is a superfluous charge, that is dismissed.
    

JUSTICE NELSON