Police v Lesa [2021] WSSC 44 (10 September 2021)

SUPREME COURT OF SAMOA
Police v Lesa [2021] WSSC 44

Case name:	Police v Lesa
Citation:	[2021] WSSC 44
Decision date:	10 September 2021
Hearing date:	25 March 2021
Parties:	POLICE v PETO PAULO LESA male of Faleu Manono uta
File number(s):	S1451/19, Charging Document 2019, Charging Document A/2019 and Charging Document B/2019 .
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court Samoa Mulinuu
Judge(s):	Justice Fepulea’i Ameperosa Roma
On appeal from:
Order:	On the one count of sexual violation by rape, you are convicted and sentenced to 11 and a half years imprisonment. On the charge of indecency on a young dependent child, you are convicted and sentenced to 5 years imprisonment. On the charge of insulting words, you are convicted and discharged. The 2 imprisonment sentences for rape and indecency on a young dependent child are to be served concurrently. Time spent in custody to be deducted.
Representation:	I. Atoa for Prosecution M. Soonalole for the defendant
Catchwords:
Words and phrases:	sexual violation – indecent act – aggravating factors – mitigating factors – maximum penalty – previous good character – starting point of 16 years – sentence
Legislation cited:	Crimes Act 2013 s.49(1), s.63(3) POO 1961 s.4(g).
Cases cited:	Key v. Police [2013] WSCA 3 (28 June 2013)
	Police v. Faatauvaa [2019] WSSC 11 (18 January 2019) Police v. Mavaega Tuitea (21 February 2017) Police v. Musuai (5 November 2020) R v. AM (CA 27/2009, CA 32/2009)
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

POLICE v PETO PAULO LESA male of Faleu Manono uta
Defendant

Counsel:
I. Atoa for Prosecution
M.Soonalole for the defendant

Sentence: 10 September 2021

SENTENCING OF JUSTICE ROMA

Charges

[1] You appear for sentence on 3 charges:

(i) Sexual violation by rape pursuant to s49(1), Crimes Act 2013. The maximum penalty is life imprisonment;
(ii) Indecent act on a dependent family member under 21 years of age pursuant to 56(3). The maximum penalty is 14 years imprisonment;
(iii) Insulting words pursuant to s4(g), Police Offences Ordinance 1961.

[2] You pleaded guilty to the indecent act and insulting words charges and tried unsuccessfully to vacate those guilty pleas. On the charge of rape, you were found guilty by a panel of assessors following a defended hearing on 25 March 2021.

Offending

[3] There are 2 victims of your offending. They are sisters. At the time of offending, you were in a defacto relationship with their mother. The victims were therefore your step daughters.

[4] The circumstances of your offending including the charges you admitted are gathered from the evidence heard at trial on the rape charge.

[5] The first incident occurred on 11 October 2017. The first victim who was then 15 years of age had gone to school. She returned home as she was not feeling well. Not long after, you arrived home from work and asked why she was home. She told you the reason. You then offered to and did massage her legs. You also then told her ‘sei ou kago e ai lau mea ou koe alu ai’. She got up and left and returned home only when you went back to work.

[6] The second incident also concerned the first victim and occurred early the next morning. Whilst sleeping, the victim felt someone massage her stomach and breasts. She woke up to find it was you. Later that morning, she wrote a note to her sister about what happened.

[7] The third incident relates to the second victim. In March 2019 whilst spending a weekend with your partner and her daughters at your family at Faleu Manono, you went into the room where the second victim was sleeping. She felt someone heavy on top of her. She felt your penis penetrate her vagina. She saw it was you. She cried and tried to push you away. You then got off, sat between her legs and further penetrated her vagina using your fingers. You told her not to tell anyone or you would beat her up.

[8] In the pre sentence report, you continue to claim your innocence.

Victims

[9] The victims are sisters. They were your stepdaughters and aged 15 at the time of your respective offending. The victim impact report before me concerns the eldest of the 2 and victim of the indecent act and insulting words charges. She says that it was the first time someone has said and done anything like this to her. She says further that what happened affected their relationship with their mother who did not believe her when told what happened.

[10] Even in the absence of a report concerning the second victim, there is no doubting the physical mental and psychological impact of your offending on her young life.

Aggravating factors

[11] The aggravating features of your offending are:

(i) There are 2 separate incidents of offending;
(ii) It involved 2 young victims aged 15 years;
(iii) Vulnerability of the victims given their age; that they were under your care and the offending occurred in the homes that you shared with them and of your family at Manono uta;
(iv) Familial relationship and the consequent significant breach of trust;
(v) The offending involving the second victim occurred whilst you were on bail for offending involving the first victim;
(vi) Impact on the victims. You violated the victims who should have felt safe under your protection. The impacts mentally and psychologically will last a lifetime.

Mitigating Factors

[12] The mitigating factors personal to you as Offender are:

(i) Apology which is confirmed by your former partner and mother of the 2 victims;
(ii) Your personal circumstances – you are 43 years of age and ninth in a family of 11 siblings. You stopped going to school in your final year of high school to help out and care for your parents. You found employment as a bus driver and entered into a relationship with the mother of the victims. Since your offending and consequent remand in custody, your partner has entered a new relationship. The testimonials by your parish priest, village mayor and family representative speak of your quiet nature and hardworking attitude; and contribution to your family and church. You are a first offender.

Discussion

[13] The sentence must be a long term of imprisonment. This is another case of an older male sexually abusing and violating young females under his care and protection. The Court must continue to play its part in weeding out this shameful and inexcusable behaviour from Samoan society. The sentence must deter you and like minded males from committing similar and deplorable conduct, hold you accountable for the harm that you caused the young victims and protect the interests of the victims and society.

[14] Prosecution recommends a starting point of 17 years. They refer to the Court of Appeal’s guideline judgment in Key v. Police [2013] WSCA 3 (28 June 2013) which set the sentencing bands for offending involving sexual violation and which must be read in conjunction with R v. AM (CA 27/2009, CA 32/2009). I bear in mind that the uplifts in sentences in Key reflects the greater maximum penalties for some offences in Samoa. Prosecution says that your offending falls under Band 3 of the Key guidelines.

[15] Prosecution refers me to 2 cases where the Court adopted a 20 year starting point. The first is Police v. Faatauvaa [2019] WSSC 11 (18 January 2019) where a 47 year old defendant stepfather was sentenced on 5 counts of sexual violation by rape of his 15 year old stepdaughter. The second is Police v. Mavaega Tuitea (21 February 2017) where a 57 year old male was sentenced on 1 count of rape and 4 of sexual connection with a 14 year old victim. The defendant was married to a sister of the victim’s father. He had caught the victim’s father committing rape on the victim on previous occasions and blackmailed him to satisfying his sexual needs on the victim.

[16] I consider helpful the cases of Police v. Cowley (30 January 2019) where a 26 year old defendant was sentenced on the 2 counts of rape, 1 of unlawful sexual connection and 1 of indecent act on a child on his stepdaughter; and Police v. Musuai (5 November 2020) where a 60 year old defendant was sentenced on the rape of his 16 year old step granddaughter.

[17] I accept that your offending falls under Band 3. I adopt a starting point of 16 years on the charge of rape. I deduct 2 and a half years for your previous good character as attested to by your referees including the fact that you are a first offender. I deduct a further 2 years for your apology as confirmed by the pre sentence report. That leaves a term of 11 and a half years.

Result

[18] On the one count of sexual violation by rape, you are convicted and sentenced to 11 and a half years imprisonment.

[19] On the charge of indecency on a young dependent child, you are convicted and sentenced to 5 years imprisonment.

[20] On the charge of insulting words, you are convicted and discharged.

[21] The 2 imprisonment sentences for rape and indecency on a young dependent child are to be served concurrently. Time spent in custody to be deducted.

Justice Fepulea’i A. Roma