Police v Lemalu [2022] WSSC 41 (9 September 2022)

IN THE SUPREME COURT OF SAMOA
Police v Lemalu [2022] WSSC 41 (09 September 2022)

Case name:	Police v Lemalu
Citation:	[2022] WSSC 41
Decision date:	09 September 2022
Parties:	POLICE (Prosecution) v SEPULENATO IOANE LEMALU (Defendant)
Hearing date(s):	11th & 12th July 2022
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Lesātele Rapi Vaai
On appeal from:
Order:	On the charge of sexual violation by rape you are convicted and sentenced to nine years’ imprisonment. On the charge of sexual connection with a dependent family member you are sentenced to three years’ imprisonment. On the charge of being armed with a dangerous weapon, you are sentence to three months’ imprisonment. The sentences are to be served concurrently. Time spent in custody to be deducted from the nine years.
Representation:	I. Atoa for Prosecution S. Ponifasio for the Defendant
Catchwords:	Sexual violation by rape – sexual connection with a dependent family member – armed with a dangerous weapon – village penalty imposed – sentencing bands – previous good character – temporarily banished – custodial sentence.
Words and phrases:
Legislation cited:
Cases cited:	Key v Police [2013] WSCA 3 (28 June 2013); Police v Faatauva’a [2019] WSSC 11; R v AM [2010] NZCA 114; [2010] 2 NZLR 750; R v Woodhouse [2013] NZHC 610.
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

A N D:

SEPULENATO IOANE LEMALU

Defendant

Counsel: I. Atoa for Prosecution
S. Ponifasio for the Defendant

Sentence: 09 September 2022

S E N T E N C E

Introduction

1. Mr. Sepulenato Lemalu, you appear for sentencing today having been convicted, following an assessor trial in this Court on the charges of:
   • (a) sexual violation by rape;
   • (b) sexual connection with a dependent family member; and
   • (c) being armed with a dangerous weapon.
2. For the rape charge, a sentence of up to life imprisonment may be imposed. For the sexual connection with a dependent family member the maximum sentence available is 14 years; and for being armed with a dangerous weapon a 12 months imprisonment is the maximum sentence. As you know in this case the Prosecution has applied for an imprisonment sentence. It is recommended that a starting point of 18 years’ imprisonment be adopted for the offence of sexual violation by rape. Your counsel recommends a starting point of 10 years. Both counsels have filed written submissions. I have given them careful consideration of the appropriate sentence for the gravity, the seriousness of your offending, including your culpability for the offending.

Facts of the offending

3. The victim of your offending is the biological daughter of your de facto wife. She was living with you and your wife prior to your offending. She was 17 years’ old. Her other siblings were living elsewhere. Her biological father had died.
4. On the night of your offending, your wife went to watch television at your neighbour’s home leaving you, your four year old son and the victim at home. The victim was asleep in her room when you entered armed with a small knife. Despite her protests you proceeded to pin her down, fondled her, undressed her and eventually raped her. You threatened her with a knife. She was in pain when you forcibly penetrated her. She was also terrified. You stopped after you ejaculated inside her.
5. Although the incident was conveyed to the mother the same night, it was only after several months later when the grandparents discovered the incident that the police were notified and the investigations commenced.

Victim Impact Statement

6. A victim impact report is from the victim herself. She is now 18 years’ old. She still remembers with anger the threats you made on the night in question. With the peace and security given to her by her grandparents, she has made every effort to erase the pain from your offending. She found it difficult to understand the offending and the emotions she feels.
7. Her state of emotions has unfortunately been complicated by the attitude of her mother who has turned hostile and blamed the victim for the consequences of the conviction which you now face.
8. The grandfather during his testimony at the trial also carried some guilt as a result of having allowed the victim to live with her biological mother and you.

Pre-sentence report

9. The pre-sentence report has provided the Court with important information about you. You are 52 years’ old, you left school at Year 12, you worked at a cannery in American Samoa and returned in 2005 to Samoa to live permanently and worked your plantation. You have no biological child.
10. Attached to the pre-sentence report are written testimonials by your parish priest and village mayor. You are described as a Eucharistic Minister, a term given to those commissioned to distribute Holy Communion.
11. The report also states:
    • “He remained adamant of his innocence, insisting that he and the victim were not together at the time noted on the charging sheet that the offending took place. Sepulenato believes his step children have conspired against him so to ruin his marriage with their mother”

Village Fine

12. You were dealt with by your village council of Mauga, which imposed a fine of about 50 sows (pigs), and you were also banished from village activities. The village mayor however has confirmed your return to the village life.

Starting Point of Sentence

13. The first step in this sentencing process is to decide the appropriate term of imprisonment. Both the Prosecution and your counsel agree that a term of imprisonment is the most appropriate. The starting point is the sentence that would be imposed for the charge of rape as that is the most serious of the charges. The sentencing guidelines for rape is given by the Court of Appeal in Key v Police^[1] where the Court sets out four bands of starting points for rape sentences.
14. Your counsel, Ms. Ponifasio, suggests that band two should be considered while the Prosecution submitted that band three is the appropriate one. Band two covers offending which involve a vulnerable victim, and is suitable where the violence and pre-meditation are moderate. The starting point in band two is 9 to 15 years’ imprisonment. For band three, the starting point is 14 to 24 years’ imprisonment and covers offending where the aggravating features are at a relatively serious level.
15. Ms. Ponifasio also submitted that your offending falls within the lower end of band two and that the starting point should be around 10 years. She does not contest that the victim was vulnerable. However, she contended there was no element of pre-meditation on your part, that there was no violence involved beyond that which is intrinsic to the offending; that your offending was in substance a single incident of opportunistic instead of a pre-meditation.
16. With commendable frankness, your counsel conceded that the aggravating features of your offending include the breach of trust; it was committed within the family environment against a dependent, vulnerable family member.
17. For the Prosecution it was submitted that your offending falls at the higher end of rape band three because there are several aggravating features present that are serious. In addition to the vulnerability breach of trust and familial relationship conceded to by your counsel, there was also the age disparity, moderate degree of violence and the threat with a dangerous weapon.
18. The difference between the starting points submitted by counsels arises from their different views on the factors which they consider make your offending more serious. I turn to consider the appropriate starting point.
19. The most significant aggravating features of your offending is the vulnerability of the victim, who treated you as a father figure. She suffered emotional harm. In cases of sexual offending against young girls, harm is seen as being “ordinarily serious and having lasting impacts.”^[2] I also accept that your offending was pre-meditated. It was not merely opportunistic. Although you did not manufacture the circumstances to be alone with the victim, you approached her with a knife as soon as your wife left the house. Although you did not physically harm the victim you did threaten her.
20. Violence is not restricted to physical violence. It also includes threats of violence^[3] on a young girl, like the victim, who was under 18 at the time of your offending. Section 8 of the Sentencing Act 2016 applies in cases involving violence against a child under the age of 18 years and requires the Court to consider an aggravating feature cases involving violence against a child under 18 years.
21. Taking all of the above factors into account, I conclude that your offending of rape falls within the higher end of band two. I consider 12 years’ as the appropriate starting point. Prosecution referred me to two cases where this Court adopted a 20 year starting point. Police v Faatauva’a^[4] involved a step father convicted of five counts of rape on his 15 year old step daughter. Police v Tuitea^[5] concerned at 57 year old uncle of the victim convicted of rape and sexual connections. In both cases the Court adopted a starting point of 20 years for multiple offendings of rape, the very young age of the victim, exploitation and blackmail.

Adjustment of sentence for personal factors

22. You are entitled to a discount for previous good character and for the manner in which your village treated you as a consequence of your offending. You were temporarily banished. You were also heavily fined. At the age of 52, you appear for the first time in Court. I fix the discount at 25%.
23. On the issue of remorse, you have obviously displayed no feeling of remorse by insisting on your innocence through the pre-sentence report. As a consequence you will not be entitled to a reduction in sentence.

Sentence

24. On the charge of sexual violation by rape you are convicted and sentenced to nine years’ imprisonment. On the charge of sexual connection with a dependent family member you are sentenced to three years’ imprisonment. On the charge of being armed with a dangerous weapon, you are sentence to three months’ imprisonment. The sentences are to be served concurrently. Time spent in custody to be deducted from the nine years.
    

JUSTICE VAAI

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^[1] Key v Police [2013] WSCA 3 (28 June 2013).
^[2] R v Woodhouse [2013] NZHC 610 at [29].
^[3] R v AM [2010] NZCA 114; [2010] 2 NZLR 750 at [39].
^[4] Police v Faatauva’a [2019] WSSC 11 (18 January 2019).

^[5] Police v Tuitea, Unreported Judgment, (21 February 2017).