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Police v Alualu [2018] WSSC 70 (10 April 2018)

THE SUPREME COURT OF SAMOA
Police v Alualu [2018] WSSC 70

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

ETERU ALUALU male of Fualoloo Mulifanua
Accused

Counsel:
F Ioane for Prosecution
Accused unrepresented

Sentence: 10 April 2018

SENTENCE

The charges

1. The accused appears for sentence on one charge of assault with intent to commit sexual violation pursuant to s.53 (2) of the Crimes Act 2013, which carries a maximum penalty of 14 years imprisonment, as well as one charge of burglary pursuant to section 174 of the Crimes Act 2013 and one charge of wilful trespass pursuant to section 7 of the Police Offences Ordinance 1961. Burglary carries a maximum penalty of 10 years imprisonment and wilful trespass carries a maximum penalty of 6 months imprisonment.
2. He pleaded guilty to the charges on 20 November 2017. However because the accused disputed some parts of the summary of facts, a hearing proceeded on 8 March 2018.

The offending

3. The Prosecution summary of facts accepted by the Court after the hearing on the disputed summary of facts, is that on the night of 21 October 2017, the victim who was 15 years old was sleeping with her younger sister inside their bedroom. At around 2am, the accused who had been drinking on the seawall in front of the victim’s house, went into the victim’s house and into the victim’s room. He locked the door from the inside and removed his pants. He lay on the victim’s back and when she woke up, she began to scream. The accused blocked her mouth with his hands and tried to pull off her top. The victim’s younger sister woke up and went to wake their father. The accused ran off leaving his pants.
4. The accused is a first offender.

The accused

5. As shown in the pre-sentence report, the accused is 29 years old. He is married and was employed in construction until he was remanded into custody as a result of this matter.
6. His aunt told Probation that the accused is good natured and humble. She has been counselling him since his involvement in this matter. He was fined $300 by the village council. He has paid his fine.
7. The village mayor told Probation that the accused attends to duties and activities expected of untitled men in the village.
8. The accused says about the offending that he was drinking vodka on the seawall behind the victim’s home when he saw a mobile phone next to the window. He went inside the room in which the victim and her younger sister were sleeping. He turned on the mobile phone and the victim woke up. She screamed and he blocked her mouth with his hand. He says it was to silence the victim from waking up other people in the house. He has expressed remorse to Probation. There has been no apology by the accused to the victim’s family.

The victim

9. The victim is 15 years old from Mulifanua and is in Year 10. The victim said that her nose was bruised and her lip was bleeding after the incident. There has been no reconciliation and she feels scared and unsafe within her own home. She has not forgotten the incident and wants the accused punished.

Aggravating features of the offending

10. It is aggravating that there was actual violence involved in this offending. The accused blocked the victim’s mouth and tried to silence her. He also tried to remove her top. She suffered minor injuries as a result of his actions.
11. The effect on the victim has been significant. She does not feel safe anymore and cannot forget what happened.
12. This offending was part of a home invasion which is aggravating.
    
13. The victim was particularly vulnerable as she was sleeping with her younger sister in the same room, and they are both young girls, being 15 and 14 years respectively at the time.

Mitigating Factors

14. I take into account his early guilty plea although he will not be given the full credit as the victim had to relive the incident because he disputed the summary of facts.
15. I take into account his penalty paid to the village council as I am required to pursuant to section 7 of the Community Justice Act 2008.
16. I take into account the testimonials in his favour and his remorse expressed to Probation and in Court today.
17. It is not a mitigating factor according to section 7(3) of the Sentencing Act 2016 that the accused was affected by the voluntary consumption or use of alcohol at the time of committing the offence.

Discussion

18. Prosecution submits that a starting point of 5 years imprisonment is appropriate.
19. This offending was opportunistic at the outset by an intoxicated man. However once he entered the house of the victim, his intention to commit sexual violation or in other words rape, became apparent by his actions. Too often alcohol has been the cause of sexual offending. Fortunately for this victim, she woke and her father was alerted before anything more sinister occurred. Alcohol is no excuse for this type of blatant home invasion as well as intended sexual offending. The accused got to a point of intoxication whereby he went into the victim’s house and into her room, undressed himself, physically restrained the victim, and tried to remove her top. He had no regard for her or for her family.
20. The sentence imposed today is a sentence of deterrence and to ensure the protection of the community and in particular people who are attacked in their own homes where they have a right to feel safe.
21. Having therefore considered the aggravating features relating to this offending, I take the starting point at 3 ½ years imprisonment for the lead offence of assault with intent to commit sexual violation. I deduct 25% or 10 months for his early guilty plea. I deduct 6 months for the village penalty and I deduct 2 months for testimonials in his favour and his remorse.

The result

22. The accused is convicted of assault with intent to commit sexual violation and sentenced to 2 years imprisonment.
    
23. The accused is convicted of burglary and sentenced to 1 year imprisonment.
24. The accused is convicted of wilful trespass and sentenced to 2 months imprisonment.
25. All sentences to be served concurrently.
26. Any time spent in custody to be deducted.

I MAKE AN ORDER PERMANENTLY SUPPRESSING THE NAME OF THE VICTIM AND ANY DETAILS WHICH MAY IDENTIFY HER. THIS ORDER DOES NOT APPLY TO THE DEFENDANT

JUSTICE TAFAOIMALO LEILANI TUALA-WARREN