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Police v Te'o [2010] WSSC 34 (25 June 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

FAAE’E TE'O
male of Solosolo
Defendant

Presiding Judge: Justice Vaai

Counsel: Ms T Nelson for the prosecution
Mr T S Toailoa for defendant

Sentence: 25 June 2010

SENTENCE

1. The accused was originally charged with one count of unlawfully taking a woman with intent to have sexual intercourse with her, five counts of rape and one count of causing actual bodily harm to the same woman.

2. He pleaded guilty to the actual bodily harm charge. The assessors found the accused not guilty of the five charges of rape and of abduction.

3. All the three charges arose out of the events of the night of 4th December 2009. The complainant alleged that she was forcefully taken by the accused despite her protests from Lotopa village to Fagalii by the golf course where she was physically abused before she was raped five times. She was punched at least ten times on the face after she was dragged by the hair by the accused from the front seat of the car to the back and thrown onto the tray. After being threatened and punched ten times on the face she was dragged back to the front seat where he raped her five times. As she struggled to push him off he punched her on the chin. She was punched at least twice at the front seat.

4. She finally gave up struggling. After the five incidents of rape, the accused drove her to the Apia Police station where she had parked her car earlier that evening.

5. In dismissing the five rape charges and the abduction charge, the assessors obviously did not believe the evidence of the complainant. The assessors either totally believed the version of events given by the accused or it created a reasonable doubt in the minds of the assessors.

6. Obviously the medical findings by the examining doctor did not support allegations of rape. It certainly does not in my view support allegations of a brutal assault described by the complainant.

7. What the assessors must have found very difficult to believe was the story by the complainant that shortly after she and the accused drove away from Lotopa towards the traffic lights at Pesega, she tried to open the car door when she was struck on the left side of the forehead by the accused with a very hard object rendering her unconscious. When she regained consciousness, they were at the Fagalii golf course. Unfortunately for the complainant, the medical findings showed no injury whatsoever to the left side of the forehead.

8. The assessors obviously believed that the complainant was a willing passenger in the accused's car resulting in the not guilty verdict to the charge of abduction. Similarly, the assessors did not believe the complainant's version of what took place at Fagalii. Her evidence taken together with the medical findings from the examination of the complainant must have left some real doubt in the minds of the assessors whether sexual intercourse did take place.

9. In passing sentence I must also reject the evidence of the complainant in her description of the alleged assault on her by the accused on the tray of pickup and at the front seat. Taking into consideration the size and physique of the accused, the medical findings cannot support the allegations of brutal assault.

10. At Fagalii the complainant wanted the accused to turn around and take her back. He got angry, stopped the car and told her to get out, because she refused he got out and pulled her out of his car. As he drove away she hanged onto the door. He stopped the car got out, he went over to her side and during the argument she threw her mobile at him. During the course of the ensuing struggle he backhanded the complainant twice on the face causing her to fall on the road.

11. I must also bear in mind that earlier that evening as the accused was driving the complainant and her companion towards Lotopa, the complainant told the accused to detour to a shop to buy cigarettes and drinks. But when the car did arrive at the shop neither the complainant nor her companion got out of the car to go to the shop. In their testimonies the complainant and her companion appeared to be of the views, that it was not abnormal for them to make the requests, neither was it abnormal for them to refuse to get out of the car to go to the shop.

12. I must also bear in mind that both the accused and the complainant were under the influence of alcohol.

Aggravating Factors

13. The medical report described the injuries as:

"Physical injuries included a large bruise below her left eyelid, a bruised lower lip and the left side of her face was visibly swollen and painful to touch. There were also some bruises around the front area of her neck. No other physical injuries were noted elsewhere."

The prosecution submits the injuries described in the medical report were in fact serious.

14. As a police officer, and despite the provocation by the complainant, his police training, should have enabled him to handle the complainant's display of aggressiveness and refrain him from reacting in the way he did by slapping her twice and back handing her two times in the face.

Mitigating Factors

15. The defendant is aged 24 years, single, a first offender, a talented musician and has been a police officer for two years. He is spoken of highly and is held in high esteem by his church and village leaders.

16. His guilty plea and the fact that he is truly remorseful are factors which undoubtedly are to be considered in mitigation.

17. It is also appropriate to note that since the assessors found the accused not guilty of abduction and rape, they must have accepted that the complainant was a willing passenger in the accused's car despite the original protests by the accused for her to get out. Which means that when she demanded at Fagalii golf course to be driven back to her home the accused like any other reasonable Samoan would have felt angry. He then stopped the car and told the complainant to get out. Instead of getting out she became abusive and violent and threw her mobile phone at the accused when he tried to drag her out of the car. He then assaulted her and left the complainant at Fagalii.

18. It is also significant in mitigation to take into account that as the accused drove away he regained control of his anger. He turned around and took the complainant to the Apia Police.

19. There is one other significant matter of mitigation. In opposing bail for the accused the police obtained from the complainant an affidavit in which she deposed to being taken by force, brutally assaulted and violently raped five times. She also spoke of the visit by the parents of the accused to her home to seek forgiveness and as a consequence she feared for her safety as well as her constant fear of attempted contact by the accused and his family.

20. She even deposed that she believed there was a risk the accused will depart Samoa given the fact he is a Mormon and have many relatives in Hawaii.

21. Bearing in mind she knew nothing about the accused and his family, and bearing in mind the evidence given at the trial and the resulting verdicts, it is blatantly clear the complainant went ouf of her way to punish the accused before her allegations against him were determined.

22. In a way she did succeed. The accused was kept in custody pending his trial for a period of about four months. She has also through her written statement to the court for the purpose of this sentencing process criticised the failure of the justce system in failing to secure convictions for rape against the accused.

23. Counsel for the accused has urged the court to deal with the accused in a manner which would not result in a conviction being registered against the defendant. Section 104 of the Criminal Procedure Act 1974 empowers the court to discharge the accused without conviction.

24. In considering the circumstances surrounding the offending, the conduct of the complainant, the state of intoxication of both the accused and the complainant and the background of the accused a custodial sentence would not be considered appropriate. But this accused has spent 4 months in custody

25. Given the circumstances I have described above and the background of the accused he is discharged without conviction.

JUSTICE VAAI