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Police v Tofilau [2021] WSSC 55 (19 November 2021)

IN THE SUPREME COURT OF SAMOA
Police v Tofilau [2021] WSSC 55

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D:

WERNER TOFILAU male of Iva, Savaii, Vailoa Faleata and Tanumalala.
Prisoner

Counsel:
F Ioane for prosecution
Accused in person

Sentence: 19 November 2021

SENTENCE OF PERESE CJ

1. The defendant is a 38-year-old male of Iva, Savaii, Vaitoloa Faleata and Tanumalala.
2. The victim is the defendant’s step-daughter, at the time of the offending she was 16 years old.
3. Following a defended hearing where the prisoner represented himself, I found him guilty of the offence of doing an indecent act namely caressing the body of the victim, being a dependent family member under the age of 21 years.
4. The facts in this matter are set out in my decision, dated 11 September 2020, and I do not intend to repeat them here, save for where I refer to specific parts of the factual background.
5. I have had the benefit of considering the following documents: -
   • (a) Prosecution’s sentencing memorandum:
   • (b) defendant’s handwritten submissions, dated 28 September 2020, and in oral submissions given today the prisoner apologised to the Court, saying what he did was wrong, and he sought the Court’s forgiveness and mercy:
   • (c) victim impact report:
   • (d) the pre-sentence report, and supplementary report dated 14 October 2020.

Discussion

Aggravating features:

6. There are four aggravating features that I consider relevant:
   • (e) The breach of trust. The prisoner was at the time considered to be the victim’s stepparent. Indeed, during the evidence he would often refer to himself as the victim’s father. The victim in her statement refers to him as someone she looked up to as her father. The victim at the trial spoke about the tremendous feeling of betrayal of her trust that a father should not treat his daughter as the prisoner treated her.
   • (f) Impact on the offending and the vulnerability of the victim. The prosecution submits the offending has left the victim feeling scared and embarrassed. The offending has impacted her upbringing and given her young age and vulnerability; she continues to try to cope with the offending.
   • (g) This is repeat offending, and the prisoner’s second offence whilst serving time.
   • (h) As set out in the pre-sentence report, dated 14 October 2020, the prisoner remains adamant of his innocence and says that nothing happened.

Mitigating features

7. There is one mitigation feature as to the circumstances of the offence, which appears to go towards an admission of the acts complained about, although, self-servingly, it is bound up with his own version of events:
   • (a) In his written submission, Mr Tofilau writes:
   • “I told her in English and she didn't get [the Facebook post] and that's why I translated the post using the Samoan fa’aaloalo version. Hence once I translated the post she looked shocked then more like scared and said to me “Dad, I’m your daughter, why are you telling me that, you should tell that to mum”. Yes, she was indeed right, I shouldn't have said that no matter what. That is now my greatest regret. I felt very sorry for her at the time and that was why I stood up and asked her to come so I could hug her. I hated myself for what I said, and I wanted to comfort her, and assured her that I was still her father, who would never hurt her. That was the only time I came into body contact with her. She was my daughter who I saw was feeling insecure, and I was her father trying to restore that bond between us.”

Sentence

8. The prisoner needs to be held to account for his behaviour. In a locked room, Mr Tofilau asked his daughter to provide him with a cure from her vagina, and he said to her that all she had to do was to lie down and he would do what was required to get the cure. Whilst he was telling his daughter this he grabbed her hand and started rubbing her forearms up to her shoulders and her back. Fathers who consider this type of behaviour as acceptable must be kept away from society. A sentence of imprisonment is the appropriate sentence. One only hopes that the prisoner will come to understand that he cannot continue to believe his version of reality.
9. The prosecution submits a starting point of two years for this offending, is in keeping with offending in other cases. They further seek an uplift of six months on account of the fact that the defendant has reoffended whilst serving a sentence for other sexual offences.
10. I agree with the prosecution’s submission as to both starting point and uplift. But, I also add a further period of six months on account of the fact that this is the third time that the prisoner has offended whilst serving a custodial sentence. In addition to the offences mentioned below, the prisoner was also convicted and discharged of the escaping on 16 March 2015.
11. Accordingly, the prisoner is sentenced to a period of 3 years imprisonment, to be served cumulative to the 8-year sentence of 11 July 2014, which was imposed for his convictions for indecent assault, attempted rape, and giving of narcotics; and the 10 months of imprisonment sentence for possession of narcotics on 2 July 2018 (which was imposed cumulative the 8 year sentence). In other words, once the prisoner’s sentences for the indecent assault, attempted rape and giving of narcotics; and the possession of narcotics are completed, then he may immediately begin his sentence of 3 years for the offending in this case.

CHIEF JUSTICE