SUPREME COURT OF SAMOA
Police v Manuleleua [2013] WSSC 38

Case name: Police v Manuleleua
Citation: [2013] WSSC 38
Decision date: 14 June 2013
Parties: POLICE and NEPATA MANULELEUA, male of Vaimoso
Hearing date(s): 12 March 2013
File number(s): S1657/12, S1658/12
Jurisdiction: Criminal
Place of delivery: Mulinuu
Judge(s): Justice Vaai
On appeal from:
Order: (Sentence)
Representation: 
Leinafo Taimalelagi and Phaedra Valoia for the prosecution
Treena Atoa for the defendant
Catchwords: 
Words and phrases:
Legislation cited:
Cases cited:
Police v Pauesi
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Prosecution

AND:

NEPATA MANULELEUA, male of Vaimoso
Defendant

Counsel:
Leinafo Taimalelagi and Phaedra Valoia for the prosecution
Treena Atoa for the defendant

Sentence:	14 June 2013

S  E  N  T  E  N  C  E 
1.	The defendant Nepata Manuleleua, a 28 year old unemployed male of Vaimoso pleaded guilty to one count of robbery and one count of rape of a 63 year old female of Vaimea.  His two co-defendants were acquitted by assessors of the charge of rape but convicted of robbery.   I have dealt with the two co-defendants in a separate ruling.
Factual Background
2.	In the early hours of the morning of the 10th March 2012 the defendant and his two younger co-defendants entered the apartment of the 63 year old complainant through the front door.  They have been drinking alcohol.  They went to the apartment at the suggestion of the defendant who knew Pauline, a fa’afafine, a friend of the complainant who was living with the complainant.  But Pauline was not at the apartment.  He had gone out and the front door was unlocked for Pauline to enter upon his return.
3.	It was about two o’clock in the morning when the defendant and his associates entered the apartment which was in darkness.  With the aid of the light of the mobile phone the defendant and his associates saw the complainant asleep, they thought the complainant was Pauline but soon realised she was not when the complainant woke up.
4.	Instead of leaving the apartment when they realised Pauline was not there, Nepata proceeded to physically and sexually abuse the complainant.  Despite the pleas by the complainant the defendant continued the abuse by undressing and trying to put his penis inside the mouth of the complainant.  During all this time, the complainant was pinned to the floor; despite her struggles her tiny physique could not repel the strength of the defendant and his associates.  She was eventually raped.
5.	While the complainant was held down the defendant and his associates took turns to search the apartment and steal monies, jewellery and other items itemised in the information.  The value of the items stolen is estimated at $1,902.00.
Submissions by the Prosecution
6.	Counsel for the prosecution contended that the aggravating features of the offence of rape justify a starting point of not less than 12 years imprisonment.  Aggravating features of the offending included:
(a)	the vicious and callous nature of the offending involving physical and sexual abuse by the defendant and his associates who intruded and aided and abetted each other in the commission of rape.
(b)	the use of threat and actual violence to effect both the rape and robbery.  This was in fact a gang attack with an element of planning and pre-meditation.
(c)	the significant impact of the attack on a 63 year old female and a foreigner, resulting in emotional distress and profound fear which has haunted her since the attack.
(d)	the complainant suffered injuries to her body and private part. 
7.	For the offence of robbery a starting point of nine (9) years is suggested.
Submissions by the Defence
8.	Counsel for the defendant submitted that the offending was fuelled by alcohol which generated the lapse in judgment and driven by the company of his younger accomplices to boost his sense of bravado which eventually led to the commission of the offences.
9.	He is unemployed, 28 years of age, and is the youngest of a large family.  In mitigation he offered his full co-operation with the police by pleading guilty and availing himself as a police witness.  It is emphasised that he is remorseful and accepts full blame for the offending.
10.	It is also submitted that he has apologised to his village council and has also paid the village fines.  Counsel also told the court that the defendant attempted to offer an apology to the victim but was advised not to; instead his father and village matai offered the apology.
Victim Impact Report
11.	A victim impact report has been given to the court for the purpose of informing the court of the consequential effects of the offending on the complainant.  Obviously she has experienced a great loss of pride as a woman and as a human being since the incident.  It is also stated that she has had sleeping difficulties, she experiences bad dreams, hallucinations and often wake up screaming.  Sometimes the emotions brought about by memories of the incident are so overwhelming and disturbing.
12.	She has to look for alternative accommodation as what she used to call home was a reminder of fear, shame, anger, trauma, and insecurity.
Discussion of the Rape charge
13.	The victim was sleeping alone when her apartment was invaded.  Obviously the traumatic events she was subjected to that night will continue to have a significant adverse impact on her and from which she may not fully recover.  The 63 year old complainant has suffered emotionally and financially.
14.	My attention has been drawn by the prosecution to sentence levels imposed by the court for rape offences, in particular to Police v Pauesi where the defendant raped the complainant five times after he broke into her home late at night.  It must be said however in fairness to this defendant that violence exhibited in Police v Pauesi was more brutal, extending over a more lengthy period and involved the use of a weapon.  But it must be said also that since Pauesi the sentences for rape offences have markedly increased.
15.	In the commission of the offence the defendant was obviously the ring leader.  He was the more aggressive.  His less willing accomplices were virtually ordered to assist. 
16.	Alcohol as defence counsel acknowledged played a leading role in the offending.  His previous offending in 2010 which had an element of violence, also involved alcohol.  Defence counsel has said everything that could be said for the defendant.  His plea of remorse cannot be seriously considered for purpose of sentencing.
17.	Despite warnings by this court, the sexual and physical abuses of our women and young girls continue to be on the raise.  Those abuses will be met with severe stern punishments.
18.	The probation service is of the view that the defendant’s reoffending is a distressing state for not only his own good but also for everyone who are keen to support him because his behavior and pattern of offending has escalated remarkably within a short period of time.  It definitely does not show any sign of remorse on his behalf from the last time he was in court.
19.	A starting point of 15 years is considered the appropriate starting point after consideration of the circumstances surrounding the offending.  I do not consider his previous conviction in 2010 as an aggravating factor to increase the sentence.  For his guilty plea I will deduct 4 years.  He is sentenced to 11 years imprisonment less any time he spent in custody.
Discussions of the Robbery charge
20.	As already stated in the discussion of the rape charge it was the defendant who took the leading role.  During the course of sexually and physically abusing of the complainant, the defendant told his accomplishes to look for valuables to take.  Defendant himself rummaged through the premises.
21.	 Again the prosecution has provided the court with a valuable summary of the levels of sentences imposed for robbery.  But there is a wide range of conduct and circumstances which can constitute robbery and accordingly the starting point for sentence must depend on the particular circumstances of each case.
22.	Value of the goods stolen was $1,902.00.  The maximum penalty for robbery is 10 years imprisonment.  A starting point of 4 years and 6 months is considered appropriate.  For his guilty plea I will deduct 12 months.  He is sentenced to 3 years and 6 months to be served concurrently with the rape charge.

JUSTICE VAAI