Police v Filisi [2021] WSSC 45 (10 September 2021)

SUPREME COURT OF SAMOA
Police v Filisi [2021] WSSC 45

Case name:	Police v Filisi
Citation:	[2021] WSSC 45
Decision date:	10 September 2021
Hearing date:	17 March 2021
Parties:	POLICE v IOANE PATERIKA FILISI (aka) SIO PATERIKA male of Vaimoso.
File number(s):	S552/20, S553/20, S554/20, S557/20.
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court Samoa Mulinuu
Judge(s):	Justice Fepulea’i Ameperosa Roma
On appeal from:
Order:	On the 2 counts of sexual violation by rape, you are convicted and sentenced to 8 years imprisonment on each count; On the charge of causing actual bodily injury, you are convicted and sentenced to 2 years imprisonment; On the charge of being armed with a dangerous weapon, you are convicted and sentenced to 3 months imprisonment. All sentences are to be served concurrently. Time spent in custody to be deducted.
Representation:	I. Atoa for Prosecution K. Koria for the defendant
Catchwords:
Words and phrases:	aggravating factors – armed with a dangerous weapon – actual bodily injury – guilty – sexual violation by rape,–maximum penalties –– mitigating factors – starting point for sentence – sentence
Legislation cited:	CA 2013 s.49(1)(a)(2), s.52(1), s.119(1) POO 1961 s.15.
Cases cited:	Key v. Police [2013] WSCA 3 (28 June 2013) R v. Taueki [2005] (Police v Sialii (16 January 2015), Police v. Lualua (22 June 2018); (Police v. Autagavaia (10 April 2013); (Police v. Meaalofa (18 December 2013), Police Faatauvaa (18 January 2019), Police v. Lavilavi (11 June 2012); (Police v. Teevao (9 July 2012), Police v. Ah Cheem (23 June 2017).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

POLICE v IOANE PATERIKA FILISI (aka) SIO PATERIKA male of Vaimoso.
Defendant

Counsel:
I Atoa for Prosecution
K Koria for the defendant

Sentence: 10 September 2021

SENTENCING OF JUSTICE ROMA

Charges

[1] You appear for sentence on 4 charges:

(i) 2 counts of sexual violation by rape pursuant to s49(1), Crimes Act 2013. The maximum penalty for each charge is life imprisonment;
(ii) 1 count of causing actual bodily injury pursuant to section 119(1), Crimes Act 2013. The maximum penalty is 7 years imprisonment;
(iii) 1 count of being armed with a dangerous weapon pursuant to s25, Police Offences Ordinance 1961. The maximum penalty is 1 year imprisonment.

[2] You pleaded guilty to the actual bodily injury and being armed with a dangerous weapon charges. You were found guilty by a panel of assessors on the 2 rape charges following a defended hearing on 19 March 2021.

Offending

[3] The victim of your offending is your ex defacto partner. You lived together from 2007 to 2019 and have 3 children.

[4] On 19 March 2020 whilst separated, you spoke with the victim on the phone in the afternoon before she came to your workplace at Vailoa. Together you left Vailoa for your home at Vaimoso where you were living prior to separation. Not long after you arrived, you locked the door, took off your clothes and told her to undress. She refused but complied saying that you were a violent person. She feared that you would assault her if she did not. You then had sexual intercourse.

[5] Shortly after when the victim went to shower, you went through her phone and saw a picture of her new partner. You became angry and when she returned, you punched her in the face and struck her with a piece of timber. The photos tendered at trial showed extensive bruising on her face, arms and legs. Despite all that happened, she remained in the house and you did not allow her to leave.

[6] Later at night and into the early hours the next day, you again had sexual intercourse with the victim without her consent. After when you went to take a shower, she took off and sought help from your neighbours. They reported the matter to police.

[7] In the pre sentence report, you maintain that the sexual intercourse was consensual.

Victim

[8] The victim is your ex wife. Apart from the sexual offending, she explains in the VIR how you punched her face several times with your fists and struck her across the legs with a timber. She describes what you did to her as inhumane and says that she will not forget it. She was scared and looking for every opportunity to escape from the house. She was discharged after seeing the doctor with medication. She does not want to see you again and is fearful that something more serious will happen if she comes across you again.

[9] She says that no reconciliation has taken place.

Aggravating factors

[10] The aggravating features of your offending are:

(i) There are 2 separate incidents of offending within a short period of time;
(ii) There was an element of premeditation – you came to Vaimoso expecting to have sex with the victim there. You did not allow her to leave until she was able to escape the following morning;
(iii) The offending involved actual violence;
(iv) Vulnerability of the victim given the violence inflicted and that you locked her in the house and did not allow her to leave;
(v) Impact on the victim as stated in the VIR. I also take into account the impact on your 3 children, the eldest of whom had been staying with you at the time of the offending.

Mitigating Factors

[11] I take into account the following:

(i) Your personal circumstances. You are 57 years of age and a single father of the 3 children you share with the victim. You are the second eldest of 3 children. You ended your formal education at year 10 level due to financial constraints. Your counsel says that that has not stopped you from working hard and your genuine intention has always been to support your family. You have held a number of jobs to support your family and at one stage started a small business with the victim selling german buns. You are obviously a hardworking individual. Your aunt whom probation interviewed spoke highly of your character and says that you were the main caregiver. You have remained single following separation from the victim and have had custody of the eldest of your 3 children. You are a first offender;
(ii) The impact of a sentence on your children especially your eldest whom you have continued to care for since your separation and up to the time of the offending;
(iii) Counsel says that despite maintaining your innocence on the rape charges, you are remorseful for the impact of your actions on the victim.

Discussion

[12] The sentence must be a long term of imprisonment. This is another serious case of family violence. It involved not just physical abuse but sexual violation of an ex wife / partner. The sentence must deter you and like minded males from committing the same unacceptable and inexcusable behaviour, hold you accountable for the harm that you caused the young victims and protect the interests of the victim.

[13] Prosecution recommends a starting point of 20 years. They refer to the Court of Appeal’s guideline judgment in Key v. Police [2013] WSCA 3 (28 June 2013) that determined the sentencing bands for offending involving sexual violation. They also refer to R v. Taueki [2005] 3 NZLR that sets out the tariff for sentencing grievous bodily injury offences and cases involving serious violence.

[14] I have carefully reviewed the sentencing authorities cited by prosecution in its sentencing memorandum. All are cases of rape by old male defendants on young female relatives - biological daughter (Police v Sialii (16 January 2015), Police v. Lualua (22 June 2018); foster daughter (Police v. Autagavaia (10 April 2013); stepdaughter (Police v. Meaalofa (18 December 2013), Police Faatauvaa (18 January 2019), Police v. Lavilavi (11 June 2012); and niece (Police v. Teevao (9 July 2012), Police v. Ah Cheem (23 June 2017). The starting points therefore were relatively high.

[15] Whilst I accept that your offending falls under Band 3 of the tariff in Key, I consider the starting point to be at its lower end. I adopt a starting point of 14 years on the rape charges. I make the following deductions:

(i) 3 years for your personal circumstances including the fact that you are first offender;
(ii) 2 years for the impact on your children including the eldest who was under your care at the time of the offending;
(iii) 1 year for your remorse.

[16] The end sentence is 8 years imprisonment.

Result

[17] On the 2 counts of sexual violation by rape, you are convicted and sentenced to 8 years imprisonment on each count;

[18] On the charge of causing actual bodily injury, you are convicted and sentenced to 2 years imprisonment;

[19] On the charge of being armed with a dangerous weapon, you are convicted and sentenced to 3 months imprisonment.

[20] All sentences are to be served concurrently. Time spent in custody to be deducted.

Justice Fepulea’i A. Roma