Police v Mikaele [2011] WSSC 153 (17 October 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

SAVELIO MIKAELE
male of Tafaigata Prison and Sapapalii.
Defendant

Counsel: Ms L Su'a-Mailo for prosecution
Defendant unrepresented

Sentence: 17 October 2011

SENTENCE

This defendant appears for sentence on two charges: one of rape of a female at Vaitoloa on 17 August 2011 and the second the attempted rape of another female at Alafua on 29 August 2011. At the time the defendant had escaped from Tafaigata Prison where he was serving a term on charges of burglary and theft. Suppression orders will issue in respect of the complainants in both matters before the court including their village of residence, ladies and gentlemen of the press please take note.

I will deal with the rape charge first. That carries a maximum penalty of life in prison. The summary of facts which the defendant has admitted says the defendant escaped from prison on 09 August 2011. That in the early hours of the morning of 17 August 2011 he broke into the complainants house where the complainant was asleep with her two young children. The complainants husband at that time had left about 4:00 am for work. Something the defendant must have known which indicates that he had watched the house before breaking into it. Indicating an element of pre-planning in his offending.

The police summary of facts says he was armed with a knife but the defendant disputes that part. Summary also states that he used a shirt to mask his features accept for the eyes sort of like a ninja. The defendant entered the complainants bedroom where the complainant was sleeping with her children. He jumped onto her back and covered her mouth with his left hand. He threatened her with physical harm causing the complainant to become fearful and to eventually stop resisting him.

The police summary said he then turned the complainant over, pulled off her blanket and then proceeded to sexually assault her. He performed oral sex on her, sucked her breasts and tried to kiss her. The complainant tried to squirm away but the defendants threats and his physical use of violence kept her subdued. The police summary also says the defendant told the victim "ua leva ona ou fiamea ia oe." This again suggests the complainant was known to the defendant.

The defendant proceeded to rape the complainant including digital penetration of her private parts which caused scratches to her private parts and pain. He continued until he was satisfied and then he left the house. The complainant gathered up her children went to her husbands workplace and the couple reported the matter to the police with a description of the defendant. The defendant was only arrested by the police about one month later when he was then charged with this matter.

The case of this defendant is very similar to the case of Police v Amate whom I sentenced on charges of sexual assault on 29 August this year. Like that defendant, this defendant has a long history of previous convictions for burglary and theft, escape from prison and possession of narcotics. And like that defendant, this defendant committed his offending by breaking into a house in the early hours of the morning and assaulting a sleeping woman.

Also like that case, this defendant is a career criminal who began offending in 1989 when he was about 17 years of age. He began with the usual burglary and theft and that escalated into escaping from prison and other offences. Like that defendant, no effort was made at an early stage to intervene with this defendant to try and turn his life around while he was still young. The end result is a career criminal. The same sort ofcomments the Probation Office made in that case are also made in Savelios report. Where it states;

"E tusa ai ma faamaumauga o lenei alii ua avea le toese e fai mona aiga lona lua. O le tala moni, ua talatutusa lava le umi o aso ma tausaga na nofosala ai Savelio i totonu o le toese ma aso na ola saoloto ai o ia. Ua maitauina, o se tasi lenei o alii na amata mai lava lona olaga i le falepuipui i le tausaga e 1989 seis oo mai lava i le taimi nei. O tulaga foi i ituaiga solitulafono ua faatinoina e lenei alii, ua aafia ai soo se vaega o solitulafono e amata mai lava ile gaoi ma le talepe fale, faasolo ane a ii le faaoolima mataga, faapea foi ma lona tagofia o laau faasaina.

O le mea moni, o taimi uma lava e magalo a ii tua mo Aso Sa, pe sola ese mai ai foi lenei alii mai i le toese, e faapopole loto auā o le a le malu puipuia tagata lautele. O le tasi mea mautinoa o loo auai i polokalame fuafua mo le toe fuataina o loo faatautaia e le falepuipui, peitai e faigata ona maitauina se suiga lelei i lona olaga."

These two cases illustrate the value of intervention programmes especially in relation to young offenders. A little investment of time and money may in the long term save a large investment of manpower and resources involved in keeping dangerous criminals housed and fed at taxpayers expense in order to protect the general public.

Reviewing the history of this defendant it is clear a pattern of escalating offending is in existence. As observed with his brother Amate it is frightening to contemplate what this defendant will do the next time he escapes from prison.

There is no doubt the seriousness of the defendants offending and the need to protect the public from such offenders requires the imposition of a prison term. The real question is the duration of such a term. The prosecution has suggested a start point of 25 years. But it should be pointed out that cases involving the high start point of 20 and 25 years were cases involving rape by a parent or relative and/or cases involving young complainants and that is not the situation here.

Considering all the relevant factors in this matter including the fact that the defendants record shows a propensity to offend which has now expanded into the sexual arena I adopt a 15 years start point as appropriate. I deduct one-third of that term for the defendants guilty plea leaving a 10 year balance. There is no other factor requiring further deduction. On this charge of rape the defendant will be convicted and sentenced to 10 years in prison cumulative to his present terms.

I decline the prosecution request to impose a non-parole period because it seems to me that would mark a radical departure from the existing sentencing regime adopted for criminal cases in this country. There is no indication that the Parliament of this country intended to defer such a power to a sentencing judge. In any event section 7 of the Prison and Parole Board Act 1977 empowers the Parole Board to consider a wide range of factors including the courts comments upon sentencing of an offender. And it should be clear from this judgment how dangerous an offender this defendant is and the likely consequences of an early release of him on parole.

As to the second charge facing Savelio the attempted rape charge, when the summary of facts was read to him, he disputed the prosecution summary. He says he was too hasty with his guilty plea and he denies attempting to rape the complainant of that matter. I was initially not disposed to grant his application to change plea on that charge as the defendant is a seasoned offender. This is not his first experience before the court. But I have reviewed the court file and note he has also pleaded not guilty in relation to charges of assault and armed with a dangerous weapon in relation to that particular incident. And I note his cautioned statement to the police which he is also now denying only admits hugging and kissing the complainant of that matter. Furthermore the prosecution summary of facts in this matter paragraphs 4 to 6 thereof do not necessarily establish beyond reasonable doubt in my mind that the defendants intent in that matter was none other than to try and rape the complainant.

I do not propose to restate the principles applicable to a change of plea application. These have been well settled in previous decisions of this court and by the Court of Appeal in Nofoaiga v Police [2007] WSCA 3 where the court said:

"An application for a change of plea at the pre-sentence stage of proceedings should be decided on the broad principle of whether it is required in the interests of justice, because of a mistake or misunderstanding, or for some other reason."

I consider that in this instance the interests of justice - notwithstanding his record he is entitled to justice as much as any other, require that I set aside his guilty plea to the attempted rape charge and substitute with a not guilty plea. And remit that matter to trial together with the other two charges arising out of the same incident which he has already pleaded not guilty to. That charge is accordingly adjourned to the next mention date which is 31 October to set a date of hearing before this court of all three matters pending against the defendant.

............................
JUSTICE NELSON