Police v Roketi [2024] WSSC 81 (2 August 2024)

IN THE SUPREME COURT OF SAMOA
Police v Roketi & Anor [2024] WSSC 81 (02 August 2024)

Case name:	Police v Roketi & Anor
Citation:	[2024] WSSC 81
Decision date:	02 August 2024
Parties:	POLICE (Informant) v FETUAO FATA ROKETI (First Defendant) and FAAIUASO PIULA TUIVANU (Second Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Senior Justice Nelson
On appeal from:
Order:
Representation:	L. Taimalelagi for prosecution A. Matalasi on behalf of S. Ponifasio for the first defendant F. Lagaaia for the second defendant
Catchwords:	Jointly charged – double rape – custodial sentences.
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:

P O L I C E

Informant

A N D:

FETUAO FATA ROKETI male of Afega.

First Defendant

A N D:

FAAIUASO PIULA TUIVANU male of Satuiatua Savaii and Afega.

Second Defendant

Counsel: L. Taimalelagi for prosecution

A. Matalasi on behalf of S. Ponifasio for the first defendant
F. Lagaaia for the second defendant

Sentence: 02 August 2024

SENTENCE

1. The uncontested Police summary of facts says: the first named defendant, Fetuao Fata Roketi is a 23 year old male of Afega currently unemployed. The second named defendant, Faaiuaso Piula Tuivanu is a 25 year old male of Satuiatua Savaii and Afega is currently employed.
2. The victim is a 24 year old female who stays at home and looks after her 3 year old daughter and elderly mother.
3. Fetuao is known to the victim because they had previously dated for some three (3) months in 2021. Faaiuaso is not known to the victim and she only met him through Fetuao on the night of the incident.
4. The name and details of the victim including her village of residence are suppressed from publication by order of this court as per the usual practice.
5. On the evening of 10 April 2023, the victim left her home to walk to the nearby store to do her mother’s shopping. The victim walked past a group of young men which included the defendants. The group of men had been drinking together earlier in the evening.
6. Fetuao called out to the victim as she walked past. He then approached the victim and asked where she was going. The victim told Fetuao she was going to the store. Fetuao told the victim there was something he wanted to talk to her about. However, the victim told Fetuao she was going to do her shopping and continued towards the store.
7. When the victim returned from the store, Fetuao approached her a second time and warned her against a group of men that were further up the road waiting for her with a knife. Fetuao volunteered to walk her home, but they were to go first to a villager’s house nearby to retrieve his bottle. The victim hesitantly agreed as she was scared because of what Fetuao had told her, especially when she had seen young men drinking on the roadside that evening. Faaiuaso appeared at this point and walked together with Fetuao and the victim.
8. The defendants and the victim walked to Vaitimu’s house which is located inland. This is where the defendants had been drinking earlier in the evening with other young men from the village. Fetuao instructed the victim to go inside the house with him to retrieve his bottle. The victim refused and told Fetuao that she wanted to go home. However, Fetuao insisted that they grab his bottle first from inside the house and the victim eventually agreed.
9. Fetuao led the victim into the house and took her to a back room. There was no one home at the time. When the victim entered the room, Fetuao locked the door. Fetuao then threw the victim onto a floor mattress, removed the victims clothing, separated the victim’s legs and forcefully inserted his penis into the victim’s vagina and had sexual intercourse with the victim without her consent.
10. The victim tried to physically resist Fetuao but he was on top of her in a body lock position. While in this position, Fetuao bit and sucked the victims neck which caused bruising (love bite marks) on the victims neck. After Fetuao was done, he left the room.
11. As the victim tried to dress herself, Faaiuaso entered the room. He approached the victim, pushed her back onto the mattress and forcefully inserted his penis into the victim’s vagina and had sexual intercourse with her without her consent. By this point, the victim was feeling weak, sore and fatigued. After penetrating the victim’s vagina with his penis, Faaiuaso sat up and digitally penetrated the victim’s vagina using his fingers.
12. As Faaiuaso digitally penetrated the victim’s vagina, Fetuao entered the room again and sat on a chair which was closest to the victims head. At this point the victim felt extreme pain in her vagina as Faaiuaso continued to penetrate her vagina with his fingers.
13. Fetuao then knelt down next to the victims head and forced his penis inside the victim’s mouth. Fetuao also reached over the victim’s body and forcefully spread the victim’s legs apart while Faaiuaso continued to penetrate her vagina with his fingers. The victim cried in pain and tried to jerk away from the two men, but was overpowered by them.
14. The victim then heard Fetuao say to Faaiuaso, “sole ua lava lena ua ou pa” and felt Faaiuaso remove his fingers from her vagina. Fetuao then asked Faaiuaso, “Sole ua e pa” and Faaiuaso replied “i”. Both defendants then stood up and left the room.
15. The victim cried in pain and tried to dress herself again. She left the house feeling scared, lost and in physical pain. The victim went home and reported to her mother what had happened. The matter was reported to the Police the same night.
16. Both defendants have pleaded guilty to a joint charge of sexual violation by rape. The maximum penalty for rape is life imprisonment. But under the law of this country sentencing for rape is governed by the Sentencing Bands established by the Court of Appeal in Key v Police [2013] WSCA 3. That authority established four Sentencing Bands: B-1: 8 to 10 years, B-2: 9 to 15 years, B-3: 14 to 20 years, B-4: 19 years to life in prison.
17. The task of the court is to consider the facts of the offending in every case and decide where and in which band the offending properly lies. This is a serious rape case involving two defendants who used deception and a moderate degree of violence to lure the complainant into a locked room and then rape her one after the other. And subsequently subject her to other sexual acts.
18. The first defendant was an ex-boyfriend of the victim and the facts indicate he played the primary role in this offending. It is obvious the complainant trusted the first defendant whom she knew. A trust that was misplaced and abused by the first defendant. The second defendant was not in the room when the first defendant raped the complainant but he obviously went along with what was happening.
19. There also exists in this matter an element of premeditation in that the first defendant knew the house in question was not only isolated but unoccupied. As for the second defendant he did not just happen to join him. It was not a coincidence and it is reasonable to infer he was either in on the first defendants plan or at least was invited by the first defendant to participate.
20. In this regard I reject the accounts given by the defendants to the Probation Office as contained in their pre-sentence reports. Where they claimed the complainant consented to these sexual acts. Because those accounts are inconsistent with their pleas of guilty to rape.
21. It is also relevant to the courts consideration to assess the impact the offending has had on the victim as outlined in her victim impact report where she says the following:
    • “I le taimi lea sa tupu ai le faalavelave ia te a’u, sa ou lagona lava le loto fefe ma le faanoanoa tele ona o se tulaga sa faateia ai a’u ma ou te le’i mafaufau o le a tupu se mea faapea ia te a’u. O lea sa ou alu ese mai le matou fale lenā afiafi e fai le faatau a lo’u tinā ma lo’u leiloa le mea o le a tupu ia te a’u. Ina ua ou alu ese mai le fale lea sa tupu ai le faalavelave nei, sa le mautonu lo’u mafaufau (felt lost) ma ou le talitonuina le mea sa tupu ia te a’u. Na ou toe savali i le fale ma ou tagi ma ou fefe, sa iai foi se lagona ou te pule i lo’u ola.
    • O Fetuao, sa iai foi le taimi na ma feoa’i ai mo sina taimi puupuu (3 masina). I le vaitaim lea sa ma feoa’i ai ma Fetuao sa ou trust ina. Peitai, sa uma le ma faiga uō ona sa maua tala o lo’o fai amio ma feoai ma isi teineiti. Sa lilo i manatu e fai e Fetuao se mea faapenei ia te a’u, ona e le’o se tagata ese ma ou te masani lelei iai.
    • O Faaiuaso, ou te le masani ai. Faatoa ou vaai lea ia Faaiuaso e auala ia Fetuao i le afiafi lea sa tupu ai le faalavelave.”
22. The complainant also talks in her victim impact report of how she finds it hard to forget what happened and put it behind her. Rape is obviously an experience of nightmarish proportions for any female and the effect it has on a young woman’s psyche and psychology is undoubtedly profound. Some never get over it. Of her physical discomfort she says on page two of her victim impact report:
    • “Sa ou tagi ma ou oi i le tigā o lo’u tino, ma sa leai se malosi o le tino e tulei ese atu ai Fetuao ma Faaiuaso mai ia te a’u.
    • Sa tigā matuitui lo’u itutinosa ona o gaioiga tuufaatasi a Fetuao ma Faaiuaso, o lo’u ua (neck) sa leaga ina ua ai e Fetuao lo’u ua ma mimiti ma lo’u gutu ina ua alu atu Fetuao ma fosi totonu lona itutinosā i totonu o lo’u gutu.”
23. The victim impact report confirms that traditional ifoga and settlement has been effected. This is also verified by the Probation Office pre-sentence report. But significantly the complainant notes in the victim impact report that neither defendant was present during this process and neither defendant has personally apologised to her.
24. The law of this country rightly mandates the court must take into account ifoga and reconciliation. But does not require that the offender must be personally part of this process. There seems to be a lack of legal recognition of the value of a face to face apology or a face to face “I am sorry”. It is certainly my experience that complainants particularly of sexual assaults often regard that as of much greater value than the traditional family to family or family to village settlement and reconciliation. Because it is a personal apology for what was effectively a personal humiliation and degradation. It may be time for the law to change.
25. In any event the present law is what it is and because of these factors referred to by the court previously prosecution say this case falls within a B-3 starting point of 15 years in prison. They argue this reflects the criminality of the offending and holds the defendants accountable for their actions, accountable not only to the victim but also to the community. The argument is that it also serves to convey the necessary message to the defendants and to the public about how this kind of behaviour is not tolerated by Samoans or by the courts of this county. I agree and find that this matter properly lies at the lower end of B-3, sentence should start at 15 years in prison.
26. However as the roles of the two defendants are quite different in the offending I propose to treat the defendants differently. There is also the added factor that the first defendant Fetuao has previous convictions for sexual offending so unlike the second defendant he is a repeat sexual offender.
27. Clearly Fetuao you were the leader of this double rape. You knew the complainant, you used that knowledge to lure her into a position of vulnerability. You took her to a secluded place where you and your friend raped her. A 15 year start point is appropriate for you. But I see you were also convicted in 2019 for having sex with a minor. For which you were given a chance by this court and placed on supervision of the Probation Office. A chance you have failed to use wisely.
28. Your counsel also notes in her submission that the present offending occurred while you were on bail for another matter in the District Court and this has been confirmed by the Probation office. Clearly you have little regard for the law or the consequences of breach of the law. Two (2) years uplift will be applied to your start point to reflect those matters. One (1) year for previous conviction and one (1) year for offending while on bail for another criminal offence. From that 17 year start point you are entitled however to deductions as highlighted by your counsel.
29. Firstly for the apology and reconciliation undertaken by your family on your behalf in accordance with law the usual deduction of 6 months will apply. Secondly for the village penalty imposed on you as confirmed by the Probation Office pre-sentence report a further 6 months deduction will apply. The final deduction is for your guilty plea when the charges were finalised, a plea which has saved the courts time and the courts precious resources. And means the complainant does not have to relive an unpleasant and traumatic experience. The usual deduction of one-quarter of the balance of sentence will apply that is a deduction of 4 years making your total deductions 5 years. From the start point of 17 years that leaves a balance of 12 years in prison.
30. On this charge you will be convicted and sentenced to 12 years in prison, remand in custody time to be deducted.
31. As for the second defendant it is obvious you played a lesser and different role in this double rape. You went along with your friends plan. You accompanied him to the isolated house where you also raped the complainant. That places your offending in category B-2 but at its lower end. Considering all factors sentence for you will start at 10 years in prison.
32. As your counsel has correctly reminded the court you are a first offender, you have a clean record, you have a good background of service to your Church Minister parents and to the community as outlined in the pre-sentence report. You have good references, a lot of people speak highly of you and all are surprised by your involvement in this matter. Your involvement I think arises out of excessive alcohol and following your friend. Again a case that shows the dangers of excessive consumption of alcohol and poor choice of friends. But clearly you are entitled to the usual 6 months deduction for your previous good character and clean background. You are also eligible for a deduction for the ifoga and reconciliation process which has been carried out and as confirmed in your pre-sentence report. The usual 6 months deduction for that will apply.
33. In your case the village council penalty was banishment. Severe but justifiable. As required by law, a one year deduction will be made to reflect that penalty, that leaves a balance of sentence of 8 years. Final deduction is for your guilty plea when the charges were finalised. Again the usual one-quarter of balance of sentence deduction will apply, that is a deduction of 2 years, leaves 6 years in prison.
34. On this matter you will be convicted and sentenced to 6 years in prison remand in custody time to be deducted.
35. It is further ordered that upon release the defendants are to be enrolled on the Sex Offenders Register and become subject to the restrictions that normally apply to offenders on the Register.
    

SENIOR JUSTICE NELSON