Police v Neueli [2019] WSSC 80 (19 July 2019)

IN THE SUPREME COURT OF SAMOA
Police v Neueli [2019] WSSC 80

Case name:	Police v Neueli
Citation:	[2019] WSSC 80
Decision date:	19 July 2019
Parties:	POLICE (Informant) and NEUELI PAKIPA NEUELI, male of Apolima-uta & Satapuala (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Mata Keli Tuatagaloa
On appeal from:
Order:	The defendant, Neueli Pakipa Neueli, is convicted and sentenced to 6 years’ imprisonment.
Representation:	A. Matalasi for the Prosecution Defendant in Person
Catchwords:	rape – first offender – no apology – no reconciliation – offending opportunistic – breach of trust – early guilty plea
Words and phrases:	victim’s children present during offending
Legislation cited:	Crimes Act 2013, ss. 49(1)(a); 52(1);
Cases cited:	Key v Police [2013] WSCA 03; Police v Tololi [2016] WSSC 39 (23 March 2016); R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
Summary of decision:

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

NEUELI PAKIPA NEUELI,
male of Apolima-uta & Satapuala

Defendant

Counsel: A. Matalasi for the Prosecution
Defendant in Person

Sentence: 19 July 2019

SENTENCING OF JUSTICE TUATAGALOA

1. The defendant is Neueli Pakipa, a 50 year old male of Apolima-uta and Satapuala who pleaded guilty to one count of rape of a 36 year old female of Apolima-uta.
2. The penalty for the offence of rape is maximum life imprisonment.^[1]

The offending:

3. The summary of facts prepared by the prosecution of the offending was read out and confirmed by the defendant. The summary of facts basically says that:
   • Between 30 June 2018 and 1 August 2018 the victim stayed with her mother and the defendant. The victim is a divorcee with two young children one of them is a 3 month old baby.
   • Sometime during the night and in the early hours of the morning, the victim’s mother who is a traditional midwife (faatosaga) was sought for assistance by the neighbours. The victim was breastfeeding her baby when her mother left. The victim and her children sleep on the other side of the house from the defendant and her mother.
   • Soon after the victim’s mother left, the defendant entered the victim’s mosquito net and pushed the victim who was breastfeeding her baby on to the floor. The victim swore at the defendant, wrestled and tried to push him off her while her baby was now on the other side of the mosquito net crying. The defendant held on to both of the victim’s hands, and removed the victim’s clothing with his other hand he grabbed a bed sheet and covered the victim’s mouth with it. He then inserted his penis into the victim’s vagina.

The pre-sentence report:

4. The accused from the summary of facts and pre-sentence report is 50 years' old, married with three (3) children. He has a low level of education finishing school at Year 8 (primary level). He is third of eight children
5. The pre-sentence report prepared by Probation from talking with the defendant has the defendant saying that he had a consensual intimate relationship with the victim. The defendant spoke about the prior consensual sexual relationship.
6. The accused needs to understand that consent given by a woman to prior sexual intercourse does not continue or automatic to other sexual intercourse to follow. The woman has the right to say ‘no’ at any time.
7. The victim’s mother or the defendant’s wife told probation that she finds the behaviour of the defendant immoral for wanting to have an intimate relationship with her daughter. She made clear to probation that the defendant deserves to be in jail for his appropriate behaviour.
8. There are no written testimonials submitted for the defendant from his church minister or matai of his family or a village mayor in relation to his character. The defendant is however, a first offender.

The victim:

9. The victim from the summary of facts and victim impact report is 36 years’ old, with two children from a previous marriage. The victim says that the defendant committed the offending when was recovering from having given birth to her two month old baby. She felt pain when the defendant had forceful sexual intercourse with her.
10. The offending took place in the presence of the victim’s children – 10 year old and 2 month old baby.
11. The victim confirmed with Probation in the pre-sentence report that there has not been any reconciliation or apology by the defendant and that she feels hurt with what the defendant did to her. The victim said that she does not forgive the defendant for what he did to her.

The aggravating features:

12. There are no aggravating features personal to the defendant as offender but there are several as to his offending. These are:
    • The offending was more opportunistic than pre-meditated but the learned bench in R v AM^[2] said that - “...offenders who show predatory sexual behaviour may be more likely to offend in an opportunistic manner. They should not be treated as lacking premeditation.” I agree especially in the circumstances of this offending where the defendant is the stepfather and the mother has left leaving only the victim at home with her two young children and the defendant.
    • Vulnerability of victim: The victim was in a vulnerable state and position, that is she was still recovering from child birth two months before and at the time of the offending was breastfeeding her two month old baby.
    • There was collateral violence although minimal in the defendant holding down the victim and placing a bed sheet over her mouth:
    • There is no doubt that sexual offending will always have an impact on the victim. In this case, the impact is the embarrassment or being ostracized by the village, by her peers of the victim, the sense of contempt the victim may develop against men in general to name a few.
    • There was definitely a breach of trust.
    • I find aggravating that the offending took place in the presence of the victim’s children.

The mitigating features:

13. There are no mitigating features in relation to the offending but there are mitigating features personal to the defendant. These are:
    • previous good character; and
    • early guilty plea.

Starting point:

14. The prosecution in their sentencing memorandum submits that this case falls in the high end of Band 2 in Key v Police [2013] WSCA 03 and suggests an appropriate starting point of 15 years. They relied on cases such as Police v Faigaeleo Tololi (23 March 2016) although they rightly distinguish the circumstances of that case to the present. The golden rule is each case is judged or sentenced accordingly to its own circumstances.

Discussion:

15. Despite warnings by this Court, sexual and physical abuse of women and young girls continue to be on the rise. As such, the Court will never tire of imposing sterner sentences to send the message out that rape is a violent crime and it is not condoned by our society and there is a need to protect women and young girls from such behaviour.
16. I do not agree with the starting point recommended by the prosecution. In the circumstances of this case. I consider appropriate the starting point of 10 years appropriate at the top end of band one in Key v Police (supra); less 12 months for previous good character; less 1/3 discount for early plea which his 36 months or 3 years. This leaves 6 years.
17. The defendant, Neueli Pakipa Neueli, is convicted and sentenced to 6 years’ imprisonment.
    

JUSTICE TUATAGALOA

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^[1] Crimes Act 2013, ss. 49(1)(a) and 52(1)
^[2] R v AM [2010] NZCA 114, [2010] 2 NZLR 750