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Police v Folau [2007] WSSC 81 (26 October 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND

ILALIO TOI FOLAU male of
Faleula- uta
Defendant

Presiding Judge: Justice Vaai

Counsel: Mr A Lesa and Mr K Koria for prosecution
Ms V Maiava for defendant

Sentence Date: 26 October 2007

SENTENCE BY VAAI J

Introduction

The accused aged 35 years was on the 24th July 2007 found guilty of the crime of rape of a 14 year old school girl on the morning of the 24th November 2006 whilst the girl was walking to school. You were sitting by the main road as the girl approached the Faleula primary school compound. On your request she went to the nearby shop with the $20 note you gave her to buy two packets of twisties. On her return she could not find you because you have moved from the main road to a dirt track nearby and you called her to bring the twisties over to you. She trusted you. You are after all the brother of her father and you lived close to each other at Faleula. When she handed you the shopping and your change you held her hand and dragged her to the nearby bushes, placed your singlet over her mouth, pulled her to the ground, removed her panties, lifted up her skirt, fondled and kissed her vagina and then proceeded to rape her. She suffered physical pain, she cried but could not scream as you had gagged her with your singlet. She told the court her vision was blurred and she was unsteady on her feet as she walked to school after you threatened to kill if she speaks to anyone about the incident. During the morning break at 10:30am she walked home, her uniform was soaked with blood.

The Accused

The pre-sentence report describes you as aged 35 years; living with your parents at Faleula; a daily provider for the family by working the plantation and by fishing as well. You also told the probation service that you have been married to one Terisa a woman from Siumu for about two months at the time you were interviewed by the probation service in September (last month). You have previous convictions which both the probation service and counsel for the prosecution have drawn my attention to. In 1993 you were sentenced to 4 years and 8 months imprisonment for the crime of rape. In 1996 while you were still serving your 1993 sentence you were again given imprisonment sentence for possession of narcotics. In 1999 you were convicted of assault. In 2003 you were sent back to prison for 18 months on a charge of actual bodily harm.

Concerning this offence you have insisted to the probation service on your innocence. You told the probation service that some members of your family have always been blaming you for things you never did and the allegation of rape against you came about as a result of a dispute within your father’s family due to a litigation in the Land and Titles Court.

The Victim

At the time of the offence the victim was staying with her aunt at Faleula together with other members of the household. Her father was in New Zealand and her mother was living with her family which suggested that the victim’s parents were separated. After the incident the victim moved to Alamagoto village to live with one of her father’s brother. In April she took up boxing. She is now living with her husband at Lufilufi.

Aggravating Factors

I accept there several aggravating features of your offending. Firstly the victim here was a school girl aged 14 years attending school at the time of your offending. You were 21 years older than she was. Secondly there was some degree at breach of trust as you are the older brother of the victim’s father and at the time you all lived close to each other at Faleula. In our normal Samoan upbringing you exercised some authority over her. Thirdly there was violence associated with your offending which went beyond that inherent in such offending. And finally I cannot discard your previous conviction for rape in 1993 for which you were sentenced to 4 years and 8 months imprisonment.

Mitigating Factors

I agree with counsel for the prosecution that there are no mitigation factors. You have shown no sign of remorse. Your not guilty plea meant the victim had to give evidence and relived the drama.

Discussion

It is common knowledge that imprisonment is the only sentence available to be imposed for your offending simply because considerations of retributions and deterrence take priority over rehabilitation in rape cases to reflect the gravity of the offence and to send a deterrent message both to you and to those who may be tempted to follow the same course as you. Undoubtedly that message was conveyed to you in 1993 on your rape conviction but it seems to me you have deliberately rejected attempts for you to adhere to societal requirements and to respect young girls and women of Samoa. Recently in Police v Misi 4th April 2007 I said:

"Offences of sexual abuse are disturbingly prevalent and there is an urgent and real need for appropriate deterrent measure. Young girls are entitled to expect that within their own families they would grow to maturity unmolested and undefiled."

It is also recognised in the convention on the Rights of the child that:

"Recognising that the child for the full and harmonious development of his or her personality should grow up in a family environment, in an atmosphere of happiness, love and understanding".

Samoa as a signatory to that Convention cannot just simply pay lip service to the Convention. Too often the victims of rape cases which come before the courts are young females. Although the court does not have the benefit of a victim’s impact report in this case as a result of your offending there was undoubtedly emotional and psychological harm suffered. What is never in doubt however is that you have denied her the right live her childhood life unmolested and free from any form of abuse.

In passing sentence I take into account the seriousness of the crime of rape, the young age of the victim. The sentence must reflect society’s revulsion, denunciation and condemnation. I consider 7 years as a starting point. For the aggravating factors I have stated above I will add another 12 months. The accused is sentenced to 8 years imprisonment.

JUSTICE VAAI