SUPREME COURT OF SAMOA
Police v Tualima [2016] WSSC 150

Case name: 	Police v Tualima	
		
Citation: 	[2016] WSSC 150	
		
Decision date: 	19 August 2016	
		
Parties: 	POLICE v LAUITITI TUALIMA male of Satapuala and Luatuanuu (defendant)	
		
Hearing date(s): 		
		
File number(s): 	S3402/15, S3446/15, S3447/15,S3452/15, S3453/15, S3454/15, S3523/15	
		
Jurisdiction: 	Criminal 	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	JUSTICE VAAI	
		
On appeal from:		
		
Order:	•	For the offence of rape you are sentenced to 18 years imprisonment.  
•	For the remaining two offences of sexual violation you are sentenced to 5 years imprisonment on each charge.
•	 For the offence of robbery you are sentenced to 12 months imprisonment.
•	For threatening words and being armed with a dangerous weapon you are convicted and discharged.
•	For the offence of burglary you are sentenced to 12 months imprisonment.
•	All sentences are to be served concurrently and shall commence at the expiry of the current term.	
		
Representation: 	L Su’a-Mailo for prosecution
Unrepresented	
		
Catchwords: 	Rape – sexual violation – robbery – burglary – threatening words and armed with dangerous weapon – history of criminal offending – aggravating features – imprisonment term	
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:	Police v Peti Key	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:
		
POLICE
Prosecution

AND:

	LAUITITI TUALIMA male of Satapuala and Luatunuu
Defendant

Counsel:	
L Su’a-Mailo for prosecution
Unrepresented

Sentence:	19 August 2016

S  E  N  T  E  N  C  E
Discussion 
1.	At the age of 23 you have accumulated 20 convictions for which you are due for release in 2027.  The sentence that the court will impose today will substantially increase your years of incarceration.  
2.	Your history of criminal offending following your deliberate rejection of the efforts by the court and the probation service to rehabilitate and steer you away from the path of crime and unlawful conduct is a realistic revelation of your desire to pursue a life of criminal offending, and to spend most of your life behind bars. 
3.	Originally your offending was confined to burglary and theft but it subsequently upgraded to robbery when you employed the use of violence and weapons to effect the thefts during your several escapes from prison.  As for sexual offending, you have one conviction for indecent assault in 2011.
4.	You have relayed to the court your shame and remorse for the harm you have caused to the couple whose room at the hotel you broke into and sexually violated the woman amongst the other criminal acts you committed.  It seems apparent from your plea that despite your relapse into sin and crime in the past, your criminal conduct can be treated and you are willing and prepared to make a change.  If you are genuine and you are serious about taking steps to seek efforts the court will provide avenues to facilitate your road to recovery.  Parole is one such facility.
5.	But realistically you pose an ongoing and significant risk to the safety of the community particularly the violence to persons and to property involved in your conviction history.  The risk of re-offending remains very high unless you are kept in confinement within the prison compound.  The same view is echoed in the pre-sentence report from the Probation Service.  The report says:
	“Lauititi is on the stage where he sees Tafaigata as his real home.  His constant involvement with the law while serving imprisonment time is an indication of his less sense of remorse, and his facial expression and remarks during interview highlight the fact that he is expecting to break the law again and again.”
6.	At the time of this offending you were again on the run from the police.  You ability to walk away from a supposedly tight police security particularly given your history of escapes, speaks volumes of unprofessionalism and neglect on the part of the authorities concerned.
7.	When you broke into and entered one of tree houses  at Lupesina Resort in the early hours of the morning in question you invaded the privacy of the couple staying at the resort.  You were armed with a pair of scissors.  You immediately took advantage of their state of fear, uncertainty and vulnerability.  You threatened to kill when they screamed.  When you demanded money they gave you all their cash as well as their other belongings like head phones, camera and cell phone.  And they begged to take them and leave them alone.
8.	If the purpose of your breaking and entering was to obtain cash for your sustenance during your borrowed free time on the run, you could have taken the money and other items and run.  But you chose not to.  You took advantage of the circumstances.  You tied the male partner’s hands and legs while he was lying on his stomach.  You then proceeded to sexually violate the female partner in full view of her partner.  After kissing her, you removed her panties, inserted your fingers inside her vagina and into her anus.  You then turned her over and raped her until you ejaculated.  You then tied her legs and proceeded to leave the room with the cash and other items when one of the female workers came on the scene and spoilt you free escape.
9.	Your offending has had significant mental and psychological impact on both the victims who have since returned to Australia where they have continued to receive treatments including one for Post-Traumatic Stress disorder.  Their sense of personal safety have been fundamentally changed.  Distress, panic, anxiety are some of the symptoms which require both victims to seek medical treatment. This is particularly true for the female victim because the crime of rape involves a severe degree of emotional and psychological trauma.
10.	As for the appropriate punishment to be imposed, the prosecution contended that for the most serious offence of rape, the offending falls within band 3 of the guidelines for sentencing provided in Peti Key v Police which provides for a custodial sentence of 14 – 20 years.  And given the aggravating features of the offending the prosecution is seeking a starting point at the highest level which is 20 years.  For the remaining offences a much reduced level of sentences are sought.
11.	In considering the appropriate starting point of sentence, the court must also consider sentences imposed in the past by this court for similar offending.  Those cases provide a useful guidance, but the sentence for each case must be determined by the circumstances of the particular case.
12.	The aggravating features of the offending warrants a starting point of 18 years for the offence of sexual violation by rape.  For your previous conviction history your sentence is upgraded by 3 years making a total of 21 years.  In mitigating, I accept submission by the prosecution that your guilty plea is the only mitigation factor.  It was nonetheless a delayed guilty plea.  A deduction of 3 years is made.  For the offence of rape you are sentenced to 18 years imprisonment.  
13.	For the remaining two offences of sexual violation you are sentenced to 5 years imprisonment on each charge.
14.	 For the offence of robbery you are sentenced to 12 months imprisonment and for threatening words and being armed with a dangerous weapon you are convicted and discharged.
15.	As for the offence of burglary, the Lupesina Tree Resort and Mr Batchelor have been added to your extensive list of victims for your multiple offendings of breaking and entering.  Mr Batchelor has through the medical publicised his concerns and frustrations as a victim of your offending and as a victim of the neglect of the prison authorities.  The Court shares his frustrations and concerns. For the offence of burglary you are sentenced to 12 months imprisonment.
16.	All sentences are to be served concurrently and shall commence at the expiry of the current terms.
JUSTICE VAAI