Police v Falealo [2024] WSSC 23 (8 March 2024)

IN THE SUPREME COURT OF SAMOA
Police v Falealo [2024] WSSC 23 (08 March 2024)

Case name:	Police v Falealo
Citation:	[2024] WSSC 23
Decision date:	08 March 2024
Parties:	POLICE (Prosecution) AND ANITIPA NIFAE FALEALO, male of Fasitoo and Eva (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Senior Justice Nelson
On appeal from:
Order:	For the offences of rape in respect of the first complainant the defendant will be convicted and sentenced to 13½ years in prison. Remand in custody time awaiting sentence to be deducted therefrom. In respect of the offences of unlawful sexual connection and indecent act in relation to the first victim, this is part and parcel of the rape offending. The defendant on those offences will be convicted and discharged without penalty. On the single count of unlawful sexual connection and indecent act on the second victim the defendant will be convicted and sentenced to 3 years and 2 years respectively, terms to be served concurrently with the rape. O lona uiga o le aofaiga o lou fa’asalaga i le mataupu lenei Anitipa e 13½ tausaga e te nofo sala ai i le toese mo vaega uma nei, ae tatau ona e toesea mai le taimi lea sa e nofo taofia ai e fa’atalitali ai le fa’aiuga a le Fa’amasinoga.
Representation:	H. Apisaloma and J. Leung-Wai for prosecution S. Ponifasio for defendant
Catchwords:	- Rape – unlawful sexual connection – indecent act – Sentencing Bands -
Words and phrases:
Legislation cited:	Sentencing Act 2016, section 8(2)(a)(b) & (c) Family Safety Act 2013, section 17
Cases cited:	Key v Police [2013] WSCA 3
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

ANITIPA NIFAE FALEALO, male of Fasito’o and Eva.
Defendant

Counsel:
H. Apisaloma and J. Leung-Wai for the prosecution
S. Ponifasio for the defendant

Sentence: 08 March 2024

S E N T E N C E

1. The defendant has pleaded guilty to four counts of rape, sexual connection and indecent act on the 15 year old daughter of his defacto partner. He has also pleaded guilty to one count of sexual connection and indecent act on the 15 year old niece of his defacto partner. Given the ages and the nature of the offending the usual suppression order prohibiting publication of the names of the victims in this matter including their villages will continue and be made permanent.
   
2. The Deputy Registrar will read into the record the police summary of facts which has not been contested by the defendant.
   
3. The defendant is a 54 year old male of Fasito’o-Tai and Eva. He is in a defacto relationship with the victim’s mother and has no children. He was employed at a Chinese store during the offending.
   
4. The first victim is a 15 year old, she does not attend school but stays at home to look after an elderly grandfather.
   
5. On or between the 30^th November 2022 and the 1^st January 2023 sometime around 10am, the victim and her mother were at home (at the victims grandfather’s house). They were in the kitchen making koko samoa. At the time the defendant was weeding grass in front of his house where he stays with the victims mother. The defendants house is not far from the victim’s grandfather’s house. The defendant then called out to the victims mother to bring him tea and food. The victim then went to take the food and tea to the defendant.
   
6. When the victim got to where the defendant was, he told her to have sex with him. The victim responded that she is going to her mother to get a silver bowl to scrape the coconuts in. The defendant ignored the victim’s reply, grabbed the victim’s hand and dragged her inside his faleo’o.
   
7. The defendant sat the victim down on the mat, and undressed the victim by removing all her clothing. He then laid the victim down on the mat removed his pants but left his T-shirt on. The defendant then sucked on the victims breasts and she felt pain. He spread the victims legs and licked and sucked the victims genitalia.
   
8. After a while, the defendant inserted his penis inside the victims genitalia in which she felt pain and her vision became blurred. He kept penetrating the victims genitalia with his penis and eventually ejaculated inside the victim. The defendant wiped the victims genitalia with his t-shirt and told the victim to go back whilst he went to continue weeding the grass.
   
9. The second incident of rape, sexual connection and indecent act occurred between the 30^th November 2022 and the 1^st of January 2023. The victim was at her grandfather’s house alone. At that time the defendant left for the plantation and the victims mother had also left to do her washing at another relative’s house.
   
10. In the afternoon, the defendant returned from the plantation. He called out to the victim to come see him and to pour him tea. The defendant was at his house. The victim made her way to the defendant’s house after making tea. When she arrived the defendant was already putting down the drapes. He then told the victim to have sex with him.
    
11. The victim refused and told the defendant it is broad daylight but the defendant ignored her and forcefully took off all her clothes. He removed his pants and wore only his t-shirt. The victim was completely naked. He laid on top of her and sucked on her breasts.
    
12. The defendant then spread open the victims legs and licked the victims genitalia with his tongue. The victim told the defendant that her genitalia hurts but the defendant said it does not matter if it hurts. He then inserted his penis inside the victims genitalia. She felt pain in her genitalia the entire time she and the defendant were having sexual intercourse. Shortly after the defendant ejaculated inside the victim. The victim dressed herself and went back to her grandfather’s house.
    
13. The third incident again occurred on or between the 30^th November 2022 and the 1^st January 2023. Sometime during the day the victim was at her grandfather’s house, together with the victims grandfather, mother and the defendant.
    
14. The defendant was at the back kitchen when he called out to the victim to come and lay out the tarpaulin. The victim went to the back kitchen. When she arrived the defendant had already laid out the tarpaulin under a koko tree behind the kitchen. The defendant then told the victim to come to him to where the tarpaulin was. The victim obliged and walked to the defendant. He then told her to lie down on top of the tarpaulin. She obliged. The defendant then told her to take off all her clothes and laid on the tarpaulin. She was completely naked. The defendant took off his shorts, laid on top of the victim and sucked on her breasts. He then licked the victims genitalia continuously with his tongue and the victim felt pain. He inserted his penis inside the victims genitalia and had sexual intercourse with her.
    
15. The fourth incident also occurred on or between the 30^th November 2022 and 1^st January 2023. Sometime in the late afternoon the victim was at home. She felt hungry and she walked to their back kitchen to get some food. At that time the defendant was standing under the koko tree which was behind the kitchen. He called the out to the victim to come and have sex with him. The victim obliged and she went to the defendant and sat on the tarpaulin. He instructed the victim to take off her clothes. She removed all her clothes. She then laid on her back on the tarpaulin. He took off his shorts and wore only his t-shirt. He sucked the victims breasts and licked her genitalia with his tongue. The defendant inserted his penis inside the victims genitalia and ejaculated inside her.
    
16. After they had sexual intercourse, the victim dressed herself and walked back to her grand-fathers house at the front where her mother and her grandfather were.
    
17. Sometime in the month of May 2023 the defendant and the victims mother relocated and stayed at one of the victims mothers sister’s house. The victim relocated a few days later. One day the victims aunty noticed that the victims belly was growing. The victims aunty then massaged the victims belly and confirmed that she was with child.
    
18. On Tuesday 23^rd May 2023 the victims grandfather filed a complaint to the police against the defendant for having sexual relationship with the victim. The victim was removed from the defendant and her mother and placed under the care of the Samoa Victim Support Group.
    
19. On 22^nd November 2023 the defendant was taken to the Faleolo Police Outpost for cautioning and was charged accordingly.
    
20. The fifth incident occurred on the 16^th day of November 2023 when the defendant and partner moved to a different village. The second victim is also a 15 year old student. On the 16 November 2023 around 5:00 to 5:30 am the second victim was at home sleeping in the living room in front of the pantry cabinet. She was wearing a green t-shirt without a bra, her panties and her shorts right above her knees. At the time the defendant and his partner were also sleeping in the living room. And they slept not far from where the second victim was sleeping.
    
21. The second victim was sleeping when she felt something crawl on her chest, she ignored it thinking it was an insect. She flicked it with her hand and went back to sleep. Shortly after, she heard their front door close and she looked up and saw the defendant walk in through the door. She ignored him and went back to sleep.
    
22. A few minutes later she again felt something crawl up on her chest, then she felt hands massaging her breasts. She opened her eyes and saw the defendant right next to her and he was shirtless. The defendant then traced his hands down to her shorts and placed his hands in between her inner thighs and digitally penetrated her genitalia with his finger. The victim grabbed the defendants hands, removed them from her inner thighs and quickly sat up. The defendant slowly crawled back to where his partner was sleeping and laid there on his back.
    
23. The second victim immediately went to her mother who was sleeping in one of the rooms. She woke her mother up and cried, and told her what the defendant had done to her. The matter was reported to the Police for assistance.
    
24. Clearly from this summary of facts, this is another sad case of a grown man taking advantage of his position in a family and forcing himself and his unwanted sexual attentions on vulnerable young girls of the family.
    
25. In the case of the first victim this led to her becoming pregnant and she and her young baby are now in the care of the Samoa Victim Support Group. Her victim impact report and the circumstances of this matter indicate that her life has been radically altered by what the defendant did to her. Not surprisingly she expresses a wish never to see the defendant again or indeed her mother as well who she seems to hold rightly or wrongly partly responsible for what happened.
    
26. The second victim in her victim impact report has also felt the effects of what the defendant did to her. She says in her victim impact report:
    

“O se a’afiaga o lo’u mafaufau talu ai o se taimi muamua lea ua fa’atino ai e se tagata se tulaga faapea ia te a’u. O lea ua ou taumafai e fa’agalo ma aua ne’i o’u toe mafaufau i amioga sa fa’atino e Anitipa ia te a’u. Ua laki lava o lo’u vave fa’alogoina o gaioiga mataga lea sa ia fa’atino ia te a’u, lea sa ou vave nofo ai i luga ma fa’ailoa i lo’u tinā ae le’i o’o i seisi aafiaga tūgā tele.”

27. The maximum penalty for the offence of rape is life imprisonment, for sexual connection with a young person a 10 years maximum and for indecent act on a young person 7 years maximum.
    
28. I will deal with the most serious charge first that of rape of the first victim. Sentencing for cases of rape are governed by the Sentencing Bands established by the Court of Appeal in Key v Police [2013] WSCA 3. There they set out four bands: Band one - 8 to 10 years, Band two – 9 to 15 years, Band three – 14 to 20 years, Band four – 19 to life. The task for the court is to evaluate all the circumstances of this matter and decide in which of these bands and where your offending should be placed.
    
29. In this matter prosecution counsel and defence counsel agree that given the seriousness of the aggravating factors, a start point at the lower end of Band four is appropriate. These factors include the fact that this matter is a case of multiple offending over a short period of time, because the first victim was raped four times over a two-month period. There is also the fact that this occurred in the family home environment where all young girls are entitled to feel safe and protected by older male family members.
    
30. There has also been a breach of trust and abuse by the defendant of his position within the family because he was in effect the first victims step-father. His cultural duty and function was to protect and nurture the first victim not to use her as a sexual play thing. There is also the fact that the consequences of the defendants action was an unwanted pregnancy, a fact that traumatically altered the life of this young girl. And has led to a rupture in the relationship between the young girl and her mother.
    
31. There is also the fact that there is almost a 40 year age difference between the first victim and the defendant. He was older more mature and she was young naïve and inexperienced. A further factor is the predatory nature of the defendants behaviour in that the offendings all took place when the first victim was in a relatively vulnerable position and to that extent his behaviour was pre-meditated.
    
32. On the first occasion he used the pretext of food to lure the young girl to where he was. On the second occasion the first victim was home alone except for an elderly infirm grandfather. On the third occasion he used the pretext of “sau e fofola le kapolegi” to lure the young girl to him. On the fourth occasion he summoned the girl to where he was standing under the cocoa tree behind the external kitchen where he then proceeded to rape her.
    
33. Had there been a high degree of violence accompanying the rapes or had the rapes happened over a more extended period of time, I would have agreed with counsels analysis that this offending belongs in B-4. In the circumstances however I am of the view this falls more properly within B-3 but at its high end taking particular account of the provision of section 8(2)(a)(b) and (c) of the Sentencing Act 2016 and paying due regard to section 17 of the Family Safety Act 2013 because this offending took place in the context of a domestic relationship the defendant being the first victim’s step-father.
    
34. Sentencing in this case will therefore start at 18 years in prison and this should serve as a warning to other step-fathers out there who may be contemplating this kind of perverse behaviour.
    
35. From that start point the defendant is entitled to deductions for factors in his favour or mitigating factors. The first one being a deduction of 6 months for his clean record and previous good character as outlined in the pre-sentence report. The documents before me indicate that no customary settlement ‘fa’aleleiga or fa’atoesega’ was carried out in respect of either victim. But the defendant is entitled to a deduction for his guilty plea. That plea was entered when the charges were finalised and it has saved the courts precious time and resources and more importantly spared these young victims from the ordeal of testifying. For that plea I will deduct 4 years. That leaves a balance of sentence of 13½ years.
    
36. For the offences of rape in respect of the first complainant the defendant will be convicted and sentenced to 13½ years in prison. Remand in custody time awaiting sentence to be deducted therefrom.
    
37. In respect of the offences of unlawful sexual connection and indecent act in relation to the first victim, this is part and parcel of the rape offending. The defendant on those offences will be convicted and discharged without penalty.
    
38. On the single count of unlawful sexual connection and indecent act on the second victim the defendant will be convicted and sentenced to 3 years and 2 years respectively, terms to be served concurrently with the rape.
    
39. O lona uiga o le aofaiga o lou fa’asalaga i le mataupu lenei Anitipa e 13½ tausaga e te nofo sala ai i le toese mo vaega uma nei, ae tatau ona e toesea mai le taimi lea sa e nofo taofia ai e fa’atalitali ai le fa’aiuga a le Fa’amasinoga.
    

SENIOR JUSTICE NELSON