Police v Mikaele [2025] WSSC 17 (31 March 2025)

IN THE SUPREME COURT OF SAMOA
Police v Mikaele [2025] WSSC 17 (31 March 2025)

Case name:	Police v Mikaele
Citation:	[2025] WSSC 17
Sentence date:	31 March 2025
Parties:	POLICE (Informant) v SAVELIO MIKAELE (Defendant)
Hearing date(s):
File number(s):	2023-00701 Charge 1 & 6 per CD dated 8/11/24.
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Fepulea’i A. Roma
On appeal from:
Order:	The sentences on the first three charges will be served concurrently, meaning you will serve 14 months less time you spent in custody, from the 9th December when you were charged for subsequent offending. The 8 months imprisonment term on the fourth charge is to be served cumulative to the 14 months imprisonment term on the first three charges.
Representation:	V. Faasii for Prosecution M. Tuimalealiifano for Defendant
Catchwords:	Sexual violation – elderly victim – defendant a prisoner – previous convictions – pre-meditation – extremely vulnerable victim.
Words and phrases:
Legislation cited:	CA 2013 S.49(1)(b), S. 52(2) & S.53(1)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

SAVELIO MIKAELE

Defendant

Counsel: V. Faasii for Prosecution

M. Tuimalealiifano for Defendant

Sentence: 31 March 2025

SENTENCE

Before passing sentence, I make an order suppressing the publication of the name of the complainant in this matter.
Charges

1. You appear for sentence on two charges, one of attempted sexual violation which carries a maximum penalty of 14 years imprisonment; and one of unlawful sexual connection which carries a maximum penalty of 14 years imprisonment. At first you denied the charges. But on the 11th December 2024 when trial commenced, you vacated your not guilty pleas following the withdrawal of some charges by prosecution.

Offending

2. The charges arise from an incident at the victim’s home on the morning of the 20^th February 2023. You had escaped from the prison where you were serving an imprisonment term. You wandered around the area before approaching the victim’s home. The victim woke up around 7am and discovered that the front door screens had been torn. She proceeded to prepare breakfast when she heard someone calling her cousin’s name from outside. She stood in her kitchen and glanced outside to see who was calling. You walked towards her house and stood outside the kitchen. She asked why you were there, you told her you sent by MK to fetch water. She knew MK as she frequently helped her with the chores. The victim then fetched water and unlocked the door to give it to you.
3. She came back in to get you a drinking glass when you suddenly struck her on the right cheek causing her to fall and hit her head on the floor. She screamed for help but you covered her mouth and threatened her with a pair of scissors saying “fai le mea lea ou ke fai aku e fai, e ke koe e’ē loa oga e vaai lea i le mea e o’o ia oe.” You then dragged her into one of the bedrooms as she screamed and begged to spare her because of her age. You ignored her pleas.
4. Once inside the bedroom, you covered her face with a cloth, and against her pleas and resistance, you attempted to remove her clothing. You removed your lavalava and used it to tie the victim’s mouth, she continued to resist causing the lavalava to untie. You instructed her to remain still, and told her you wanted to lick her vagina. She again pleaded with you to stop, you ignored her pleas and proceeded to remove her tights, her church attire (ofu malumalu) and underwear. You lifted her legs causing pain in her lower back and proceeded to lick her vagina. You then stood up, masturbated in front of her while she continued to plead with you to stop. Again ignoring her pleas, you knelt in front of her and attempted to insert your penis inside her vagina to have forceful sexual intercourse without her consent. The victim continued to resist and struggle against you, you resorted back to masturbating in front of her.
5. The sound of vehicles passing on the road distracted you but before fleeing, you rummaged through the victim’s belongings demanding money. Despite the victim telling you she had none, you searched her handbag and purse then fled after telling her, “aunty faamolemole faamagalo mai a’u, ua ulufia foi a’u e le tiapolo”. The victim then untied her legs before walking out seeking help. By that time another prisoner who was among those searching for you arrived and rendered her assistance. Police arrived shortly at the victim’s home and took her to hospital.
6. In the pre-sentence report you deny inflicting violence and using force on the complainant, but through counsel, you withdrew that statement to Probation and accepted the details of the offending as stated in the police summary.

Aggravating Factors

7. The aggravating features of the offending are:
   • (i) the victim was an elderly mother and grandmother, 83 years of age.
   • (ii) vulnerability of the victim – given her age, she was easily overpowered by you;
   • (iii) there is an element of premeditation - you approached the victim’s house pretending you were sent by someone who was familiar to her, and when allowed inside, you proceeded to assault and abuse her sexually;
   • (iv) the level of violence - you struck her on the right cheek causing her to fall and hit her head on the ground, you covered her mouth when she screamed and threatened her with a pair of scissors, you dragged her into a bedroom forcefully removing her clothing and tied her mouth with your lavalava;
   • (v) the place of offending - you invaded the privacy of the victim’s home where she should have been secured and sexually abused her there;
   • (vi) the impact on the victim – she was an elderly grandmother who returned to settle in Samoa following her retirement and contribute to her family’s development. Apart from the impact on her health, what you did caused her shock, fear, embarrassment and emotional distress. In fact, as a result of your offending she returned overseas with no intention of coming back to Samoa;
   • (vii) you committed the offending whilst escaping from prison where you were serving an imprisonment term.
8. Personal to you as offender I consider your long list of previous convictions. They include numerous convictions for escape and offending against properties and involving violence. You have a conviction for rape in 2011 and attempted rape in 2012 for which you served lengthy custodial sentences. The Probation Service notes that you have been a prisoner for 20 years now.

Mitigating Factors

9. In mitigation I take into account your guilty pleas, though entered late before trial was to commence.

Discussion

10. This is a serious case of sexual assault on an elderly 83 year old grandmother in the privacy of her own home where she should have been safe and secure. You used force and violence, and inflicted physical and emotional harm, all despite her continuous pleas with you to stop. Your actions not only constitute a serious crime but a serious breach of our customary values and obligations to respect and care for the elderly. Your behaviour was senseless, deplorable and completely unacceptable. An imprisonment term is the only appropriate penalty.
11. For the lead charge of attempted sexual violation, prosecution recommend a starting point of 12 years. I accept their submission that the presence of many aggravating factors in particular the victim’s old age, vulnerability and the significant violence involved elevate the gravity of your offending than those in Police v Vailopa [2017] WSSC 7; Police v Soisoi [2013] WSSC 51; Police v Leota [2013] WSSC 88; and Police v Maiava [2015] WSSC 213.
12. Your counsel on the other hand submits that a 3 year starting point is appropriate for the unlawful sexual connection charge and 2 years for the attempted sexual violation charge. That is too low considering the circumstances of your case and the sentencing authorities.
13. I have carefully reviewed the authorities and for the charge of attempted sexual violation I adopt 10 years as the appropriate start point. I make an uplift of 12 months for your numerous convictions including one for rape and one for attempted rape. From that term of 11 years, I make one deduction of 3 years for your guilty plea. No apology or reconciliation has been made. I make no other deduction.

Result

14. You will serve the following sentences:
    • (i) On the charge of attempted sexual violation, you are convicted and sentenced to 8 years imprisonment;
    • (ii) On the second charge of unlawful sexual connection, you are convicted and sentenced to 4 years imprisonment.

The two terms will be served concurrently but cumulative to the sentence you are currently serving.

JUSTICE ROMA