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Police v Tololi [2016] WSSC 39 (23 March 2016)

THE SUPREME COURT OF SAMOA
Police v Faigaelo TOLOLI [2016] WSSC 39

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

FAIGAELO TOLOLĪ, male of Falefa
Defendant

Counsel:
Ms L Tavita for the Prosecution
Defendant in Person

Sentence: 23 March 2016

SENTENCING OF JUSTICE TUATAGALOA

1. The defendant is Faigaelo Tololī, a 36 year old male of Falefa pleaded guilty to one count of rape of a 42 year old female of Falefa and Lalomauga.
2. The penalty for the offence of rape is maximum life imprisonment.

The offending:

3. The defendant objected to paragraph 12 of the summary of facts by the prosecution that he inserted his penis into the victim’s mouth but accepts the rest of the summary of facts. (I will not take into account this fact because if it happened, why did prosecution not charge the defendant with sexual violation under s. 50(b) Crimes Act 2013). The summary of facts basically says that:
   
   • On 12 January 2016 the victim was home alone with her two children, a nine year old and the other seven months. The victim’s husband was at the defendant’s family reunion helping out.
   • Sometime during the night she was awoken by the defendant saying “mama” and the defendant lay on top of her. The victim tried to push him off her but the defendant punched her on the mouth. She swore at him and chased him out of the mosquito net but the defendant again punched her on the mouth. The defendant got off the victim and went out of the mosquito net.
   • The victim’s seven month old baby woke up and the victim breastfed the baby back to sleep. She went to get out of the mosquito net to go turn on the light but the defendant who had not left pulled the victim to him, pushed her on to the floor and fell on top of her. The victim struggled against the defendant but the defendant pulled off the victim’s lavalava, pulled up the victim’s top and suckled her breasts. The victim screamed and struggled against the defendant but he was too strong.
   • The defendant kissed or suckled the victim’s neck leaving ‘love bite’ marks and inserted his fingers inside her vagina causing her pain. He then forcefully inserted his penis inside the victim’s vagina.
   • The defendant did not leave after but continued to lie there, so the victim got up to turn the light on but found there was no light bulb. She touched the defendant’s clothes and found the light bulb wrapped in his clothes.

The pre-sentence report:

4. The pre-sentence report was prepared without the availability of the summary of facts.
5. The pre-sentence report prepared by Probation from talking with the defendant on what happened has the defendant confirming that they had a family reunion on that day. When he left at around 1.00 am he was very drunk and he had mistakenly entered the victim’s house thinking it was his and he also thought the victim was his wife. He admitted to Probation his wrongdoing but swore that he had done nothing further except kissing.
6. The defendant was obviously lying because first he had pleaded guilty to rape and second, he confirmed in Court that he had non-consensual sexual intercourse with the victim.
7. There is no mention of a village penalty.

The victim:

8. The victim from the summary of facts is 42 years’ old of Falefa and Lalomauga, married with two children.
9. There was no victim impact report filed but photographs of the victim was provided by the prosecution which clearly show bruises on her left cheek and on her mouth and marks on her neck.
10. The victim confirmed with Probation in the pre-sentence report that there has not been any reconciliation or apology by the defendant and that she feels hurt with what the defendant did to her.

The accused:

11. The accused from the summary of facts and pre-sentence report is 36 years' old, unemployed, and married with eight (8) children. He finished school at Year 12 at Anoamaa College and he was last employed in 2014 by a Chinese construction company.
12. The defendant’s mother from the pre-sentence report described him as reliable and a person of good character. There is a written testimonial from the pulenu’u that the defendant is doing the service of a tauleáleá in the village and has never been penalized by the village. What is noticeable is that there is nothing from the wife about the defendant. The Catholic Priest provided a written testimonial of the defendant being a hard worker and how he helps out with church activities and his family.
13. The defendant is a first offender and first offender status is linked to previous good character which is a mitigating factor. The testimonials of his mother, pulenu’u and priest support the defendant’s previous good character.

The aggravating features:

14. There are no aggravating features personal to the defendant as offender but there are several as to his offending. These are:
    • Pre-meditation: The defendant confirmed that their family had a reunion. The summary of facts said the victim’s husband was at the defendant’s house helping out with the reunion. The defendant knew that the victim was home alone with her two young children. He was not mistaken as he said in the pre-sentence report.
    • Vulnerability of victim: The victim was in a vulnerable state and position, that is she was asleep. There is also the difference in age of six (6) years – the victim is older than the defendant that means the defendant’s younger age and in addition to being a male is much stronger.
    • Home invasion at night.
    • Violence involved: the callous nature of the offending with the defendant punching the victim twice on the mouth and the sexual abuse that followed of suckling her neck, her breasts and then penetration. The sheer force used by the defendant overpowered the victim to enable him to do what he did.
    • Harm to the victim: There is no doubt that there will be long-term emotional harm to the victim.
    • Injuries sustained: The victim sustained bruises on the jaw and mouth from being punched twice by the defendant.

The mitigating features:

15. There are no mitigating features in relation to the offending but there are mitigating features personal to the defendant. These are:
    • previous good character; and
    • early guilty plea.

Starting point:

16. The prosecution in their sentencing memorandum submits that this case falls within Band 3 of the Bands in Key v Police [2013] WSCA 03 and suggests an appropriate starting point of 15 years. They relied on cases such as Police v Pauesi [2008] WSSC 23 – five counts of rape with a starting point of 12 years, end sentence was 16 years and six months’ imprisonment; Police v Filipo [2011] WSSC 127 – rape of a 15 year old, starting point of 12 years, end sentence of 18 years’ imprisonment; TL (unreported 11 June 2012) – stepfather raped 15 year old, starting point 20 years, end sentence 15 years’ imprisonment.
17. The prosecution also relies on the following aggravating features: pre-meditation, vulnerability of victim, home invasion, violence used, harm to the victim and breach of trust where the victim is not related to the victim.

Discussion:

18. Except for Police v Pauesi (supra), the other cases referred to by prosecution in their sentencing memorandum either involved the use of a weapon (knife), the victim is related to the defendant and/or the victim is under 16 years’ old. The degree of violence used and the defendants previous convictions would impact on the starting point to be imposed. The golden rule is each case is judged or sentenced accordingly to its own circumstances.
19. Despite warnings by this Court, sexual and physical abuse of women and young girls continue to be on the rise. As such, the Court will never tire of imposing sterner sentences to send the message out that rape is a violent crime and it is not condoned by our society and there is a need to protect women and young girls from such behaviour.
20. The appropriate starting point is 15 years, the top end of Band 2 in Key v Police (supra); less 12 months for previous good character; less 1/3 discount for early plea which his 56 months or 4 ½ years. This leaves 9 ½ years.
21. The defendant, Faigaelo Tololī, is convicted and sentenced to 9 ½ years’ imprisonment.

___________________________
JUSTICE TUATAGALOA