Police v Saveu [2024] WSSC 75 (27 August 2024)

IN THE SUPREME COURT OF SAMOA
Police v Saveu [2024] WSSC 75 (27 August 2024)

Case name:	Police v Saveu
Citation:	[2024] WSSC 75
Decision date:	27 August 2024
Parties:	POLICE (Informant) v LUI POKA SAVEU, male of Levi, Saleimoa (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Perese
On appeal from:
Order:	The end sentence is 52 months or 4 years and 3 months, less time served. I direct the defendant’s name is to be registered on the Sexual Offenders Register.
Representation:	I. Atoa for Pros V. Fa’asi’i for the Defendant
Catchwords:	Burglary – theft – intentional damage – threat to kill – armed with a dangerous weapon – custodial sentence.
Words and phrases:	“Attempt to commit sexual violation”
Legislation cited:
Cases cited:	Police v Leota [2013] WSSC 88 (16 October 2013).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

LUI POKA SAVEU, male of Levi, Saleimoa

Defendant

Counsel: I. Atoa for Prosecution
V. Fa’asi’i for the Defendant

Date: 27 August 2024

SENTENCE OF PERESE CJ

1. The defendant is here because he has plead guilty on 27 May 2024 to 7 offences, committed on the 12^th April 2024, within the space of a few hours. These charges are:
   • 2 counts of Attempt to commit sexual violation, which carry a maximum penalty of 14 years’ imprisonment.
   • 1 count of Burglary, which carries a maximum of 10 years’ imprisonment.
   • 1 count of Theft, which carries a maximum penalty of 7 years’ imprisonment.
   • 1 count of intentional damage which carries a maximum penalty of 7 years’ imprisonment.
   • 1 count of threat to kill, which carries a maximum penalty of 5 years.
   • 1 count of being armed with a dangerous weapon (the rebar), which carries a penalty of 1 year imprisonment.
2. The Police summary of facts, which the defendant accepts, was read to him at the last call of this matter. It provides that on 12^th April 2024 at Sogi at around 1 to 2am, the defendant approached the first of his victims, this is the victim in the burglary and theft charge. The defendant ingratiated himself on the victim and her friends and he ended up joining her and her friends drinking on the pool side. The victim and her friends then went for a swim and the defendant took the opportunity to take the keys to her car which she left on a nearby table. The theft of the car was not discovered until a little while later; by then the defendant had driven the stolen the car to the site of his second offending, at Vaitele-tai at the Mormon Church compound.
3. The three victims of his second lot of offending were visitors to Samoa, serving their missions. They were vulnerable young women, and although they have now been taken out of Samoa because of the trauma they have had to endure, I nevertheless grant permanent name suppression. Publication of their names or any identifying features, other than those referred to in these sentencing notes is prohibited.
4. The Summary of Facts records that the defendant broke into the house occupied by the three victims by using a metal rebar to break the security window. Now damaged he then reached through the security window and unlocked the door from the inside. Once inside the house he removed all his clothing, which left him naked, but he used a black t-shirt to cover your face. The defendant stood at the foot of the first victim’s bed, causing her to wake up and seeing him groping his private parts while holding the rebar in his other hand. The first victim yelled out to the defendant to stop and raised her hands to avoid being hit with the rebar.
5. The second and third victims woke up and they also saw the defendant naked and holding the rebar above his head. The defendant then threatened them all saying that he was not scared to kill them. After this threat, he then moved towards the first victim and demanded her to take off her top, but she did not comply. He then threatened the second victim with harm, and the first victim complied and took off her top. The second and third victims were also made to take off their tops. Underneath the victims’ tops were white garments, and the defendant forced them to take all their clothes off, which they did. By this time, the victims were naked. The defendant then started touching the first and second victim’s legs, all the time holding the rebar. He asked each of the victims to spit in his hand and he then proceeded to grope his testicles and masturbate in front of them. He reached out and felt the second victim’s breast and pinched her nipple. The third victim came to the second victim’s defence, but he told the third victim to stop resisting. The victims pleaded with him to leave them and take their belongings. The defendant took a phone, but he then also had the first victim spread her legs and he touched inside her vagina causing her to cry out no. The defendant moved his foot towards the second victim’s genitalia and shoved his toe into her vulva. The second victim also cried out no, and pleaded for the defendant to stop.
6. The victims’ refusals and protestations made the defendant angry and he left the room to get a knife from the kitchen. When he left the room, the three victims immediately shut the bedroom door. They must have had the presence of mind to flip over a bed as a barricade against the door. The victims were left barricaded in the room. The first victim used a spare phone in her suitcase to call the Police, who arrived at their home within a few minutes. When they got there, the Police saw the defendant masturbating outside the victims’ home whilst looking inside through the window of the room in which the victims were barricaded.
7. This account of the offending differs from the account which the defendant gave Probation services. In the account to Probation, the defendant said there were two other men involved. The version he told Probation is untested, and he is to be sentenced today on the Police summary of facts, which as I noted earlier, the defendant accepted when it was read to him when he last appeared before me on 18 July 2024.
8. The nature of the attempted sexual violation was a degrading humiliation of the victims. The defendant tried to enforce his demands by the threat of violence with a dangerous weapon. Ms Fa’asi’i submits that I should be guided by the decision of the Court in Police v Leota.^[1] That case involved a 17-year-old boy, who attempted to sexually violate a 71-year-old neighbour, by using the element of surprise and his strength to overpower the victim. Whilst I agree that the decision assists with setting the starting point, I have not seen a case with facts like those in this case.
9. I agree with some of the aggravating features that have been identified by Prosecution:
   • Use of a dangerous weapon to threaten the victims in the sexual offending matters;
   • The vulnerability of the victims;
   • The offending involves multiple victims.
10. I do not accept that there was a high degree of premeditation or planning. The theft of the vehicle was opportunistic offending, by a dishonest man. Considering the amount of alcohol, the defendant had consumed, which seems to be a lot, it is unlikely he had the cognitive ability to form a plan to go to the victims’ home, at any time before he stole the vehicle at Sogi.
11. But there are further aggravating features which cause me great concern and mark this case as being different to those which were relied on by both Prosecution and defence. As well as engaging in an attempt at sexual gratification, the defendant subjected the victims to a high degree of humiliation, he degraded them by having them strip off their clothes, asking them to spit in his hand so he could use their spit to masturbate himself, by threatening to hurt one of the victims if another of the victims did not do as he wanted, and by inserting his toe into the vulva of one of the victim’s.
12. Ms Fa’asi’i is correct to say that there was only moderate level of physical violence, beyond the violence of the attempted sexual violation offending itself. However, what is most troubling in this case is the psychological violence and dehumanising of the victims the defendant systematically carried out. It is this aspect that places this offending at the high end of culpability.
13. I have read the various reports and letters of support for the defendant placed before the Court, and I thank those who took the time to assist the court.
14. The defendant is to be sentenced on a totality principle with the attempt to commit sexual violation as the lead charge, which carries a maximum penalty of 14 years imprisonment.
15. The appropriate starting point to reflect the intrinsic seriousness of this offending is 8 years imprisonment, or 96 months. Ms Fa’asi’i asks for a starting point of 6 years, but the authority she relies on Police v Leota, the starting point was 8 years, and so a starting point of 6 years appears unrealistic. In this case there were three young women victims involved, and the defendant attempted to sexually violate them all. In Leota the victim was elderly, a 71-year-old victim. Whilst her age and vulnerability undoubtedly influenced the starting point, it could be said that the defendant’s attempt to sexually violate three defenceless young women deserves a higher starting point.
16. I am, however, satisfied that a starting point of 8 years reflects the seriousness of the defendant’s offending. I give the defendant a discount of 30% for his early guilty plea and remorse (32 months). The defendant has taken responsibility for his actions, spared the victims from having to give evidence, and saved the State the expense of proving your guilt. I understand from the Pulenuu his village fined him ST1000, which has been paid. That payment however is not to be confused with a payment of money that is given as part of an ifoga, the restorative justice measure used in Samoa custom. Had it been a part of an ifoga, the defendant would have been entitled to a discount.
17. The references from the defendant’s Bishop (of the Mormon Church) and parents, suggest his behaviour is out of character, and they have known him as a loving, faithful and obedient young man. I am prepared to give the defendant a further discount or 12 months for his previous good behaviour.
18. The end sentence is 52 months or 4 years and 3 months, less time served. I direct the defendant’s name is to be registered on the Sexual Offenders Register.

CHIEF JUSTICE

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^[1] [2013] WSSC 88 (16 October 2013).