Police v Pauesi [2008] WSSC 23 (9 May 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

NELI PALAIALII PAUESI male
of Tanugamanono
Defendant

Presiding Judge: Justice Vaai

Counsel: Mr Koria and Mr Petaia for the prosecution
Mr Roma for the defendant

Sentencing Date: 9 May 2008

SENTENCE BY JUSTICE VAAI

The defendant was found guilty of 5 charges of rape, 5 counts of indecent assault and 1 count of detaining or abduction. These offences took place on the 1st April 2007 at Vailima in the early hours of the morning. When the victim woke up in her rental place at Vailima she saw a man standing by her bed in her bedroom. She saw this man walking away from the bedroom. The victim then got out of the bed and went to look where the person who came into her room had gone to. That person was the defendant. At that time she had grabbed her mobile phone and a pocket knife. The defendant tried to get back into the bedroom while the victim was trying to push the door close. She tried to stab the defendant’s arm with the pocket knife but you defendant had the bushknife. And you were much stronger than this American peace core who was only about 26 years of age. You managed to open the door, grabbed the victim and dragged her to the sitting room. She struggled but you held the bushknife to her neck. She continued to struggle but you used your strength and the bushknife to your advantage. She was cut and you also assaulted her when she struggled. You finally managed to get her onto the floor of the sitting room. You indecently assaulted her and finally raped her for the first time. You raped her five times that night. In between the rapes you got her to suck your penis to give you hard on so that you can rape her again. When she struggled you threatened her and you told her that you will kill her and you also stabbed her with the machete so that she will obey your orders. Now I have listened to the submissions by counsel for the prosecution and your counsel this morning. I find from the submissions and from the facts that there are no mitigating factors in this case. These are the aggravating factors of your offending.

1. Home Invasion – you broke into the house and entered the house of the victim whilst she was asleep. You live at Tanugamanono but you were familiar with this house at Vailima because you were employed next door as a groundsman. As the prosecution correctly pointed out in my view your offending was calculated, deliberate and premeditated. You knew the victim and a female flat-mate were living by themselves in that house.
   
2. Brutality and the violence of the offence – the crime of rape normally involves the application of force. But in this case the violence involved was brutal, frightening and indecent. The machete you took into the house was used to threaten and to assault the victim. Initially you struggled with the victim in her bedroom, she was then dragged to the sitting room with the machete being held to her neck. When she struggled she was beaten and assaulted. She suffered physical injuries. For a considerable length of time she was subjected to violence and ill treatment that night. From the first act of rape to the fifth act of rape you subjected her to indecent assault and you also forced her to do indecent acts on you. After you raped her the fifth time you turned her over to face her downwards and tied her hands behind her back. It was then that you went to the kitchen and it was that moment that she managed to run away naked to the Sprep compound where she was given help.
   
3. Not Guilty plea – immediately after the accident the victim left for her homeland the United States of America. But she was required to return to give evidence for the prosecution as a witness. That was because you denied the commission of the offences. As a witness she was required to retell and relived the terrible events of the 1st April 2007.
   
4. Previous Convictions – on the 20th May 2002 you were convicted of rape and sentenced to 7 years imprisonment. The victim in that case was a German national who was working in Samoa. In December 2005 after serving about 3 years and 7 months of that 7 year sentence you were granted parole. After 1 year and 4 months of your release on parole you re-offended by committing these offences for which you now stand for sentence. Your re-offending and the nature of your re-offending while on parole is an illuminating message that you have no respect for the integrity of women and a complete disregard for the rule of law.
   
5. Apparent lack of remorsefulness – you have no feelings of remorse whatsoever. You were referred to the probation service for a probation report. You told the probation service
   

"ou te leiloa pe aisea ua molia ai fua a’u i se mea ou te lei faia".

You also told the probation service that you could not remember anything because of your high level of intoxication. You said exactly the same story to the probation service in 2002 when you were convicted of rape. This is what the probation report in 2002 said:

"By the time the incident occurred he was out of control due to the influence of alcohol on him. According to him the last memory he remembered was when he was talking with the lady inside her house after that he just couldn’t remember what happen afterwards."

For the 2002 rape and for these five convictions of rape for which you now stand for sentence you have never accepted responsibility.

In considering the sentence for sexual offences particularly rape the primary consideration is a term of imprisonment. There should be an element of deterrence to reflect the gravity of the offence to punish the offender, to deter the offender and to deter other like-minded people. The sentence is also to convey condemnation by society of such criminal conduct. It need not be said that the victim in this case suffered physically, emotionally and has been deprived of her self-esteem, dignity and integrity as a woman. There is only one sentence open to the court and that is a custodial sentence. Counsel for the prosecution is seeking a custodial sentence of life imprisonment and has quoted to the court a number of sentences imposed by this court in the past. Although the sentence to be imposed must depend on the facts of each particular case sentences imposed in the past must also be considered to avoid unjustified disparities. I will simply refer to two of those sentences. In Police v Niupulusu which was decided on the 27th July 2005 the court imposed a 20 years custodial sentence on the accused for raping his daughter on four different occasions. In Police v Z also decided in 2005 this court for the first time imposed a life imprisonment sentence for rape. It was imposed on a father on 10 counts of rape of his two daughters. But there were also other 9 counts of incest and 1 of attempted to commit incest as well as threatening to kill. It is also important to recognise that sentences for rape have increased significantly over the years to counter the increase in this serious crime especially when they involve fathers or stepfathers.

Taking into account the level of sentences for rape imposed in the past as well as the accused previous convictions I take 12 years as a starting point for these offences. For the sustaining brutality, violence and the use of a dangerous weapon I will add another 2 years and 6 months. For the home invasion I add another 12 months. For the not guilty plea and apparent lack of remorse I add another 12 months. For the each of the 5 counts of rape you are sentenced to 16 years and 6 months imprisonment. All terms to be served concurrently. For each of the 5 counts of indecent assault you are sentenced to 12 months imprisonment. And for the 1 count of abduction you are sentence to 12 months imprisonment. All sentences have to be served concurrently so that you serve 16 years and 6 months imprisonment. The imprisonment sentences are to commence from the 26th April 2007 when you were remanded in custody.

JUSTICE VAAI