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Police v Salele [2011] WSSC 78 (28 June 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

FAAVAE JOSEPH SALELE,
male of Moataa and Salailua
Defendant

Presiding Judge: Justice Slicer

Counsel: L Su'a for the prosecution
Defendant in person

Hearing: 22 and 23 June 2011
Sentencing: 28 June 2011

Charge: Rape, Attempted Rape, Indecent Assault and Indecent Act

SENTENCE

1. Faavae Joseph Salele has been found guilty by Assessors of the crimes of Rape, Attempted Rape, Indecent Assault and Indecent Act, contrary to the Crimes Ordinances 1961 Sections 45, 47, 48 and 52.
   
2. The crimes were committed against two girls, who were sisters, aged 11 and 14.
   
3. A Suppression Order has been made prohibiting the publication of the names of the victims, their family and village.
   
4. The Assessors returned verdicts of guilty on:
   

1 act of Rape;

2 acts of Attempted Rape;

5 acts of Indecent Assault; and

1 act of Indecent Act.

5. The rape was committed on T aged 14, in or about August 2006. It was a rape by physical force with the girl resisting but then remaining passive. When the mother found that her daughter had been ravished, she permitted the offender to continue with a sexual relationship so that her daughter could live properly within the family. She did so because the reputation of her daughter had been destroyed. The relationship ended in 2007 and the daughter gave birth to their child in May 2008.
   
6. Salele had come to the family home (of two fales) as the partner of the niece of the mother. He had committed the rape while his partner was asleep in a separate fale. He had earlier attempted to have sex with T.
   
7. At or about the same time of the act of rape he commenced a series of sexual crimes against A then aged 11, and those events occurred between July 2006 and November 2006. In that month he was discovered by the mother in attempting to rape A and evicted from the home.
   
8. The Defendant is now aged 32 years.
   
9. The Court will impose a single sentence, taking into account the totality of the crimes.
   
10. T was physically injured in the act of rape and suffered psychological harm. The general impact on her was summarised in her Victim Impact Report as including:
    
    1. After the defendant had raped her, they were in a relationship for a few months before he was chased off by her mother for attempting to have forceful intercourse with her young sister. This made her angry because he was going to make her go through the same thing as her which may ruin her life yet she was in school.
       
    2. She was also angry at him because she never wanted to live with him in the first place.
       
    3. When he tried to force her sister to have sex with him that made her angry as the defendant was trying to get both her and her sister.
       
    4. His actions were inappropriate especially since he was trying to get both of them but they are sisters.
       
11. A lived in fear and stress throughout the period of Salele's sexual misconduct, remains angry at his conduct, fears males generally and feels ashamed and embarrassed about the Defendant's actions.
    
12. Aggravating Matters
    
    • - the age of the girls;
    • - the disparity of ages between the offender and the victims;
    • - breach of trust;
    • - repetition of the acts of sexual misconduct;
    • - the effect on the girls; and
    • - prior convictions. In August 2002, he was sentenced to 9 months imprisonment by a New Zealand Court for the crime of Indecent Assault on a girl under the age of 16. He was subject to tipoti.
      
13. Mitigating Matters
    

There are few mitigating matters. He was convicted of 8 acts of Theft As a Servant by this Court on 4 March 2010, and given the benefit of 12 months probation and 50 hours of community service.

14. He is currently employed as a taxi driver and claims to receive $80 - $100 per week and pays some of that money for the upkeep of 4 children with 3 mothers.
    
15. He has shown no remorse for his acts, performed no ifoga and is not entitled to a discount for a plea of guilty.
    
16. The prosecution suggests a starting point of 25 years, consistent with decisions such as Sakarata [2006] WSSC 38; Telea (20 February 2009); Tariu Timu [2006] WSSC 15 and Police v Te'evale Aleipata (unreported, involving 6 counts of Rape, Nelson J). I do not have a copy of that sentence or its circumstances. I will adopt, for the purpose of this case, consistent with the decision of the learned Chief Justice in Police v P [2009] WSSC 16, and use 20 years as a starting point. The difference between the sentence imposed in Police v P and this case is that the victims were not the daughters of the Defendant.
    
17. The Court takes into account the permission of the mother to continue with the sexual relationship with T but makes no judgment on the conduct of the mother. The Court takes into account the principles of totality and accepts that the sentence ought not be 'crushing'.
    
18. The appropriate sentence is that of 12 years and 11 months imprisonment to commence as and from 23 June 2011.
    

ORDERS

(1) Faavae Joseph Salele be convicted of the crimes of Rape, Attempted Rape, Indecent Assault and Indecent Act.

(2) Faavae Joseph Salele be sentenced to a term of imprisonment for 12 years and 11 months, to commence as and from 23 June 2011.

(3) The names of the victims, their immediate family and village are suppressed.

..............................
(JUSTICE SLICER)