Police v Elame [2025] WSSC 34 (16 May 2025)

IN THE SUPREME COURT OF SAMOA
Police v Elame [2025] WSSC 34 (16 May 2025)

Case name:	Police v Elame
Citation:	[2025] WSSC 34
Decision date:	16 May 2025
Parties:	POLICE (Informant) v ELAME ELAME a.k.a TOTIVE ELAME, male of Nono’a Saleimoa (Defendant)
Hearing date(s):
File number(s):	S231/22 – 2022-00231 SC/CR/UP
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Senior Justice Nelson
On appeal from:
Order:	On the charge of rape Elame will be convicted and sentenced to 17 years in prison. That is a separate matter to his present term of imprisonment so it needs to be served cumulative to his present term. The defendants name should also be entered permanently on the Sex Offenders Register.
Representation:	R. Fong on behalf of F. Ioane for Prosecution T. Leavai for the Defendant
Catchwords:	sexual violation – rape – previous convictions – threats of violence – occurred multiple times – sentencing bands for rape – pre-meditation.
Words and phrases:
Legislation cited:	Crimes Act 2013, ss. 49(1)(a); 52(1); Sentencing Act 2016, ss. 7(1)(a)(d)(g)(i)(j).
Cases cited:	Key v Police [2013] WSCA 3.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

ELAME ELAME a.k.a TOTIVE ELAME male of Nono’a Saleimoa.

Defendant

Counsel: R. Fong on behalf of F. Ioane for prosecution
T. Leavai for the defendant

Sentence: 16 May 2025

SENTENCE

1. The defendant has pleaded guilty to one count of sexual violation by way of rape. The uncontested Police Summary of Facts say he was 33 years old at the time of the offending. As he has previous convictions a Pre-Sentence Report dated 27 October 2017 says he is widowed with two children who are being raised in New Zealand by his paternal grand-parents. According to that report the defendant is sometime a carpenter and “faifa’atoaga”.
2. The victim in this matter is a 19 year old female who is now resident in American Samoa. As per normal practice of the court all details concerning the victim or anything that can identify her are permanently suppressed.
3. The offending occurred on 20 Jan 2022 between 9:00 to 11:00am at Utualii-uta. At the time, the victim was home with her family. The defendant came to the victims house posing as a road construction worker and calling out to the victims family. The victims nephew went to see the defendant and returned with a message from the defendant to talk to an older family member regarding the removal of trees/plants by the road before road construction work could commence.
4. The victims mother told the victim to attend to the defendants call in the belief that the defendant was a road construction worker. The victim arrived where the defendant was and was told by the defendant that his Manager wanted an older family member to sign a document in order for the victims family to claim money for their plants, etc. that needed to be removed during the road construction. The mother instructed the victim to go with the defendant.
5. The defendant led the victim away from her home further inland past a coconut reserve area. When the pair had crossed the Nono’a road, the defendant told the victim that they need to go further inland where his Manager was waiting with the document. They continued walking for some time until they reached a secluded area where they rested.
6. Whilst the victim was facing her back to the defendant she asked if they were near their destination. The defendant responded they are almost there. The victim was caught by surprise when the defendant embraced and hugged her from behind. The defendant whispered to the victim “tatala ou ofu”.
7. The victim struggled to free herself from the defendant and as she tried to escape, the defendant grabbed hold of the victims shirt and forcefully sat her down. As the victim tried to run the defendant ripped her t-shirt as he was holding on tight to her shirt.
8. The defendant told the victim to remove her t-shirt which she complied with out of fear. The victim in her second attempt to escape then stood up pretending to remove her ie lavalava and quickly ran away from the defendant.
9. The defendant ran after the victim until she tripped, was then captured by the defendant who dragged her to where they were before. The defendant threated the victim saying “ua e fia oki? O e malamalama o a’u o le pagoka? O fea e fia malo ai e le mafai ga e koe mamulu ese ma a’u. E ke koe kamo’e loa o’u kogiga loa ma oe i le ma’a.”
10. The victim started crying while the defendant continued to threaten the victim if she tries to escape again. He then told the victim to remove her clothes and said to her “a e le faia le mea lea ouke maga’o ai, ouke fasiokia oe.”
11. The victim fearfully removed her clothes and spread her ie lavalava on the ground while the defendant held onto her hand tightly. She sat on the ie lavalava and the defendant sat next to her and said “ta mea”. The defendant glared at the victim admiring her naked body and said “magaia le papa’e o ou vae, ma lou magava, magaia ou susu i le ai.” The defendant stood up and removed his pants, laid on top of the victim, inserted his penis in her vagina. They had sexual intercourse without her consent.
12. In less than a minute, the defendant pulled out his penis and ejaculated. The victim sat back up to put on her clothes, but the defendant told her not to, “sei koekiki”. After 5 minutes the defendant said to the victim “ka koe mea”, the victim begged the defendant she is tired, she wants to go home to her mother.
13. The defendant laid the victim back down and inserted his penis inside her vagina and had sexual intercourse with the victim without her consent for the second time. The parties then left the area.
14. The matter came to light when the victim was able to escape from the defendant and told her aunty what had happened to her and the matter was reported to the Police.
15. The defendant was apprehended and taken to the Apia Police Office for interview and was cautioned accordingly on 05 March 2022. The defendant is charged with one count of sexual violation by way of rape pursuant to section 49 (1) (a) and 52 (1) of the Crimes Act 2013 which carries a penalty of life imprisonment.
16. The essential features of the facts are as follows: Firstly this is not the defendants first sexual assault on a young female. Secondly the assault was accompanied by threats of violence as well as actual physical violence which the defendant used to subdue the complainant. According to the summary of facts he posed as a construction worker and lured the complainant to a secluded bush area where he raped her twice. There is no explanation from the Police why there is however only one count of sexual violation in this matter, the other being withdrawn on trial day.
17. Clearly the defendants actions were planned and pre-meditated. In order to isolate and place the young complainant in a totally vulnerable situation. It is also apparent that he is 14 years older than her and is therefore far more experienced. And the summary of facts indicates he used his physical superiority to overpower the complainant.
18. The maximum penalty for rape under Samoan law is life imprisonment, I am sure the defendant is aware of that. Sentencing for rape cases is governed by the Sentencing Bands established by the Court of Appeal in Key v Police [2013] WSCA 3:
    • Band one – 8 to 10 years being the lowest of the rape bands
    • Band two – 9 to 15 years
    • Band three – 14 to 20 years
    • Band four – 19 years to life imprisonment
    • Where a particular case falls depends on its particular circumstances.
19. This is a pre-planned rape of a young girl lured to a deserted spot involving more than just a moderate degree of violence. The Police summary of facts refers to the victims shirt being torn when she first tried to escape from the defendant. And when she tried to run away the second time, he chased her, she tripped over a branch and according to the Summary “dragged” her back to the original spot. Where the defendant not content with raping her once, had a little rest and then raped her again.
20. Her Victim Impact Report filed by her sister says:
    • “o le mataupu lenei ina ua tupu mai i le tausaga o loo ta’ua i le tolaulauga sa avea ma tulaga ua fia alu ese atu ai ia le sa tagi mai Samoa ona ua le toe fia manatua lenei mea sa tupu ia te ia.”
21. As earlier noted the complainant moved to American Samoa according to the Victim Impact Report:
    • “E saili ai le lumanai mo ia aua le alu alu i luma o lona olaga taumafai ma lona olaga tuputupu a’e.”
22. Clearly the impact this offending has had on the complainant has been substantial. It is not uncommon for young victims of sexual assault to move away from their home villages to avoid the gossip and publicity that such events engender in a small community.
23. But there is a further factor that aggravates the defendants offending. His record indicates a conviction on two counts of assault with intent to commit sexual violation on two different complainants in 2022. For which he was sentenced to 2½ years imprisonment.
24. It also shows a further conviction in December 2022 for rape for which he received a 12½ year imprisonment term to be served concurrent to the first imprisonment term. The victim in that matter according to the unreported judgment of Chief Justice Perese dated 02 December 2022 was the 13 year old niece of the defendant. Similar to this case, the defendant there used lies to take the young complainant to a secluded place where he used force and threats of force to coerce and rape the complainant.
25. This is a disturbing pattern of behaviour and it lends easily to the conclusion that the defendant who started out as a recidivist burglar and thief has evolved into a kind of serial rapist. Such people have no place in our society and young females of the community require to be protected as far as possible from such men. There also needs to be sent out a strong and unequivocal message condemning this kind of behaviour. Having due regard to all these factors, I consider the defendants offending lies in the B-3 category and given his history and record, at its upper limit.
26. Taking into account the factors required by section 7(1)(a)(d)(g)(i) and in particular (j) of the Sentencing Act 2016, sentencing will start at 20 years in prison.
27. Allowable deductions for mitigating factors the defendant is entitled to as reminded by his defence counsel are as follows: he is not a first offender and therefore receives no deduction for good character or clean record. But Elame has rendered a written apology to the complainant by letter dated 20 February 2025 a copy of which has been provided to the court. I have my doubts about the sincerity of the letter given that it comes three (3) years after the event. And especially because according to his pre-sentence report from the Probation Service the defendant lied to the Probation Service about his grandmother and aunt previously offering a formal apology to the victim and her family. The Probation Service have confirmed this in their latest report on you Elame.
28. However what carries weight with the court is the statement by the victims sister in the Victim Impact Report filed on behalf of the family that they have accepted the defendants written apology. And they acknowledge his guilty plea which has undoubtedly saved the victim having to return to Samoa and relive a traumatic experience in her life. These two factors alone persuade me to allow a deduction for the belated apology of one (1) year.
29. The only other deduction the defendant is eligible for is for his guilty plea that has saved an unnecessary waste of time and resources. But because it was belated and entered only on trial day a full deduction cannot be given by the court. I also note that it was a guilty plea in respect of one of the counts, the other count having been withdrawn by prosecution on trial day. Which means the prosecution had to prepare for a full trial in any event. A 2 year deduction will be applied to reflect the defendants belated guilty plea. Total deductions for the defendant is 3 years in prison, from the start point of 20 years, leaves a balance of 17 years in prison.
30. On the charge of rape Elame will be convicted and sentenced to 17 years in prison. That is a separate matter to his present term of imprisonment so it needs to be served cumulative to his present term.
31. The defendants name should also be entered permanently on the Sex Offenders Register.

SENIOR JUSTICE NELSON