THE SUPREME COURT OF SAMOA
Police v Vailopa [2017] WSSC 7

Case name: 	Police v Vailopa	
		
Citation: 	[2017] WSSC 7	
		
Decision date: 	10 February 2017	
		
Parties: 	POLICE (Prosecution) v DANIEL VAILOPA male of Fugalei (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:	•	Convicted of attempted sexual violation and sentenced to 3 years and 6 months imprisonment.
•	Convicted of theft and sentenced to 1 year imprisonment.
•	Both sentences to be served concurrently.
•	This sentence will commence immediately after his serves his current term of imprisonment.
•	The name of the victim is permanently suppressed.

Representation: 	F. Ioane for Prosecution
R. Papalii for Accused	
		
Catchwords: 	attempted sexual violation - theft	
		
Words and phrases:		
		
Legislation cited:	Section.53 (1) of the Crimes Act 2013, and sub section. 161 and 165(b), Sentencing Act 2016. Section 7	
		
Cases cited:	Sapolu CJ in Police v Fuiono [2011] WSSC 83 (26
July 2011), R v Casey [1931] NZLR 594, Police v Tofilau [2014] WSSC 24 (11 July 2014), Police v Soisoi [2013] WSSC 51 (24 June 2013);

Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

DANIEL VAILOPA male of Fugalei
Accused

Counsel:
F. Ioane for Prosecution
R. Papalii for Accused

Sentence: 10 February 2017

S E N T E N C E
THE NAME OF THE VICTIM IS PERMANENTLY SUPPRESSED.
The charges
1.	The accused appears for sentence on one charge of attempted sexual violation contrary to section 53 (1) of the Crimes Act 2013 which carries a maximum penalty of 14 years imprisonment and one charge of theft pursuant to sections 161 and 165(b) which carries a maximum penalty of 7 years imprisonment.
2.	Through Counsel he vacated his not guilty pleas on 4 October 2016 and these were substituted with guilty pleas.
The offending 
3.	The Prosecution summary of facts admitted by the accused says that Sunday 31 August 2015, the accused and several other prisoners escaped from Tafaigata Prison. They then went up Mount Vaea and stayed the night at an abandoned house.
4.	On Tuesday 2 September 2015, the victim went for a hike up Mount Vaea between 9 am-10 am.  As she made her way up, she meet the accused, two of his fellow prisoners and a palagi man coming down the mountain. The victim then continued on her way while the accused told his two fellow prisoners to let the palagi man pass and for them to rest. Not long after the palagi man passed, the accused persuaded his two fellow prisoners to join him in going after the victim. His fellow prisoners advised him against it but he insisted they go after the victim.
5.	Meanwhile the victim had reached the top and headed back down the mountain. As she was running back, she came across the accused walking up towards her and he tried to block the way. The victim walked past the accused and the accused chased after her. When he caught up to her, he held her hand tightly. The victim tried to run away from him but he held on to her and started touching her waist and tried to kiss her. The victim resisted. The accused grabbed her by the waist with one hand and her neck with the other hand. The victim struggled while the accused was trying to pull down her pants and kiss her. He was telling her to have sex with him. As the victim struggled, her cell phone slipped from her hand and this caught the attention of the accused who tried to look for the phone. The victim screamed for help and the accused released her. She then ran down as fast as she could. The matter was reported to Police and Police apprehended the accused as he was walking down the mountain at Moamoa.
The accused
6.	The accused is 24 years old. His previous pre-sentence reports say he was raised by his natural parents and was educated to Year 11. There was nothing in the previous pre-sentence reports to indicate that his life would take this course given his stable family life.
7.	He is currently serving a term of imprisonment which according to the accused ends in July 2017 for an escape charge.
8.	In 2013, his mother expressed her disappointment in the accused to Probation. However she remained supportive of him.
9.	He has 15 previous convictions from 2004 to 2015, for the offences of possession of narcotics (3), theft (4), threatening words (1), receiving stolen properties (1), drunkenness (1), escape (4), and assault(1). I note the previous conviction card may be incomplete given his sentence for his most recent escape charge is not included.
The victim 
10.	The statement from the victim tells of the impact the offending has had on her life. As a keen runner, she is now afraid to carry out this important activity which she has enjoyed for years as a means of meditation and strength. 
11.	She tells of the first few weeks after the offending as being the worse. She became oversensitive to noises and would break down crying.  She was not able to stay home alone.
12.	She considers herself lucky to have gotten away but the fear has remained with her, even after leaving Samoa to return home. Even now she cannot walk alone in the dark or catch taxis alone because of her fear of being attacked again.
13.	The events of 2 August 2015 have changed her life forever. The trauma of the events is still fresh in her mind, a year later. 
14.	It is safe to say that she will never be the same again.
Aggravating features of the offending
15.	This sentencing is delivered under the new Sentencing Act 2016. Section 7 specifies the aggravating factors which the Court must take into account in sentencing, as they apply to a particular case.
16.	The first aggravating feature is that this offending involved actual physical violence in that the accused chased after the victim, caught her, held the victim’s hand, grabbed her waist and neck, and tried to pull down her pants. He also tried to kiss her. She was struggling against him. It was violence of a moderate level as the victim managed to get away but still of a terrifying nature.
17.	The offending was also planned by the accused. He saw an opportunity, planned how to use it to his advantage and took active steps to pursue the victim. This is premeditated and predatory behaviour.
18.	Another aggravating feature is the vulnerability of the victim. She was alone on a hike and he knew she was alone.
19.	The impact of the offending on the victim is also an aggravating factor. It has resulted in some real fears and insecurities in the victim which have affected her life and her lifestyle. There is no doubt that this offending on the victim who is a foreigner also has negative impacts on the image of Samoa as a country to visit.
Aggravating features relating to the offender
20.	It is an aggravating features relating to the offender that he has a significant number previous convictions. Sapolu CJ in Police v Fuiono [2011] WSSC 83 (26 July 2011) cited the case of R v Casey [1931] NZLR 594 which guides me today in determining the part played by previous convictions in today’s sentencing. Sir Michael Meyers CJ in that case said;
The Court should always be careful to see if the sentence of a prisoner who has been previously convicted is not increased merely because of those previous convictions. If a sentence were increased merely on that ground it would result in the prisoner being, in effect, sentenced again for an offence which he has already expiated. We agree that the sentence passed ought to bear some relation to the intrinsic nature of the offence and gravity of the crime. But it by no means follows that previous convictions must be ignored. It is necessary to take them into consideration, because the character of the offender frequently affects the questions of the nature and gravity of the crime and a prisoner’s previous conviction are involved in the question of his character. Further the previous convictions of a prisoner may indicate a predilection to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take then into consideration and lengthen the period of confinement accordingly. 
21.	It is also now contained in section 7(1) (j) of the Sentencing Act 2016 that one of the aggravating factors to be taken into account by the Court is the number, seriousness, date, relevance and nature of any previous convictions of the defendant and any convictions for which the defendant is being sentenced or otherwise dealt with at the same time.
22.	In the case of the accused, his previous convictions show his disrespect and disregard for the law. It appears that with this offending, that falls within sexual offending, he has now surpassed his previous offending in terms of seriousness of the offence. It calls for the Court to consider the protection of the public as a paramount consideration.
23.	It is also aggravating that this offending by the accused took place when he was still subject to a sentence and had escaped from custody.(section 7(1)(c) Sentencing Act 2016)
Mitigating Factors
24.	Section 7(2) of the Sentencing Act 2016 provides for mitigating factors.
25.	I find the belated guilty plea by the accused the only mitigating factor in favour of the accused. Defence Counsel rightly concedes this.
Discussion
26.	Prosecution submits that the appropriate starting point is 7 years imprisonment for the lead offence of attempted sexual violation and 2 years for the offence of theft.
27.	Defence Counsel submits that the appropriate starting sentence should be lower for the attempted sexual violation charge given the distinguishable facts of the case of Police v Tofilau [2014] WSSC 24 (11 July 2014) relied upon by the Prosecution in submitting their 7 years starting point. There were more aggravating features in the Tofilau case, the most notable being a breach of trust and the age difference between the victim and the offender, the victim being 17 years old. The offender was a taxi driver and the victim was a passenger in his taxi. I agree in this regard with Defence Counsel.
28.	I acknowledge Defence Counsel’s submissions that the accused was at a tender age of 15 years when he first offended. I hasten to add that had he received some form of rehabilitation at that early stage, his life may have taken a different course.
29.	Defence Counsel also conveys his remorse but I have real doubts about that.
30.	Attempted sexual violation is a very serious offence. Sapolu CJ said of this offence in Police v Soisoi [2013] WSSC 51 (24 June 2013);
Attempted sexual violation is one of the many new offences introduced by Parliament. It is the modern version of the old offence of attempted rape. But the new offence carries a higher maximum penalty of 14 years in prison. The new maximum obviously reflects Parliament’s concern at the increase in violent sexual offending in this country and represents its attempt to address the problem. The Courts are bound to recognise this concern and give effect to Parliament’s intent. Indeed this is the very essence of the role of the Court.
31.	It is an offence which falls within sexual offending. Vaai J in Police v Sivai [2015] WSSC 57 (26 May 2015) says;
In considering sentence for sexual offending the primary consideration must be retribution and deterrence, to punish the offender, to deter the offender and other like -minded people from offending and re-offending, and to convey society’s denunciation of such conduct.
32.	I am required to take into account the degree of culpability of the accused in determining an appropriate sentence. In assessing his culpability, I take into account the aggravating features of the offending. It involved actual physical violence although at a moderate level and the victim was able to get away. It took place in a secluded place where the accused saw an opportunity and planned his offending to get the victim alone. The victim was in fact alone and had to endure a terrifying experience which has had a lasting negative impact on her.
33.	Given these features, I assess his culpability to be relatively high.
34.	Considering all the circumstances, there is no question an imprisonment penalty is called for. It is required in order to hold the accused accountable for harm done to the victim, to denounce his conduct and to protect society from the accused. These considerations take precedence over rehabilitation of the accused given the seriousness of this offending. 
35.	However may I say this to the accused. You have led a life of crime which has landed you in prison so many times. There must be times when you want to live as a free man and enjoy being in society. However that will never happen as long as you offend and hurt others. The Court will not hesitate to send you back to prison to protect the community from you. The choice as to the life you want is yours alone to make. You will be sent to prison today however when you are released you will still be a young man and will have the rest of your life. This is something to think about.
36.	Having regard therefore to the aggravating features of the offending, I will take 4 years imprisonment as a starting point for sentence. I will then add 1 year for the aggravating features relating to him. This increases the starting point to 5 years imprisonment.
37.	I will then deduct 25 % or 1 year and 3 months for his belated guilty plea. 
38.	The Court reserves the right to be merciful in all its sentences. I deduct 3 months for this. I do this because this is a young man who has made many bad choices in his life but who has the ability to be a law abiding person.
The result
39.	The accused is convicted of attempted sexual violation and sentenced to 3 years and 6 months imprisonment.
40.	The accused is convicted of theft and sentenced to 1 year imprisonment.
41.	Both sentences to be served concurrently.
42.	This sentence will commence immediately after his serves his current term of imprisonment.
43.	The name of the victim is permanently suppressed.
JUSTICE TAFAOIMALO TUALA WARREN