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Police v Galumalemana [2014] WSSC 176 (3 October 2014)

IN THE SUPREME COURT OF SAMOA
Police v Galumalemana [2014] WSSC 176

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

SUENI GALUMALEMANA male of Sapapalii Savaii, Fa’atoia and Mulivai Safata.
Defendant

Counsel: L Sio and Ms Tavita for prosecution
T Tuioti for defendant

Sentence: 03 October 2014

SENTENCE

1. The defendant appears this afternoon for sentence on a number of charges, nine (9) in total including the primary one of rape. They arise out of an unsavoury incident that occurred on Saturday, 8^th June at his home village of Mulivai Safata. Usual suppression order will issue prohibiting publication of the details of the victim involved in this matter including her village of residence.
2. The facts indicate the defendant is a 27 year old male from Safata but working in Apia. He was in a relationship with the victim who was then a 19 year old girl. They had been in a relationship for a number of years beginning in 2011. But the evidence from the girl in court was the defendant would get violently jealous if she talked to other young men. Even to the point of assaulting her. Why she remained with the defendant is hard to understand.
3. On the day in question after having spent the night together at the defendants house the victim was on her way home from an errand she had run on behalf of her sister. She took a short cut through a bushy gulley that ran off the main road in the direction of her house. The defendant who had been drinking with a friend saw her enter the gulley. He followed and caught up with her. He called out to her and she stopped. She noted that he was drunk so told him to go back to his drinking party. But the defendant persisted and followed her.
4. The parties have different versions as to why the defendant continued to follow her but it seems an argument then developed between the victim and the defendant. The victim said the defendant wanted to have sexual intercourse with her again. She refused because of his drunken condition. So he threatened her and started throwing rocks at her.
5. Because she was afraid she complied with what he wanted and the two of them went to a more deserted area of the gulley. There he made her undress even to the extent of pulling off some of her clothes causing them to tear. When she was half naked he pulled out his cell phone from his pants and began filming her. He made her remove her bra and panties, punching and slapping her repeatedly because she was reluctant. Eventually she stripped naked. All the while the defendant continued to film her. He instructed her to lie down on the ground again overcoming her reluctance by assaulting her. He kept filming her including close ups of her private part.
6. The court and the panel of assessors at the defendants trial viewed this video clip. There were many graphic close ups of the victim and her distress at what was happening was obvious. And while the defendant was doing this he said “O le paumutu lena o Mulivai Safata la e fasi e le au mafia.”
7. It was clear the defendants design was to humiliate demean and punish the complainant. The video clip showed all too clearly that he continued to assault the complainant while filming her and making her undress. Her pleas to him to stop fell on deaf ears. Her attempts to resist only led to his continuing his assault.
8. At some stage the defendant instructed her to perform oral sex on him. When she refused he pulled her hair and battered her some more causing her to do what he wanted. At one stage he used his fingers to digitally penetrate her. He then told her he wanted to have full sexual intercourse and when she refused he broke off a nearby tree branch and beat her till she agreed. She gave in and sexual intercourse occurred. Afterwards he told her that if she told anyone about the incident he would upload the recording to Facebook for the whole world to see.
9. Some four months later in October 2013 the video appeared on Facebook and came to the attention of the victim, her friends, her fellow students, her family and indeed the whole world did see. This led to the police becoming involved and charges against the defendant.
10. The defendants version of these events given at trial was quite different but the panel of assessors by their unanimous verdict finding him guilty of rape indicates they did not believe him. And in convicting the defendant on associated charges I also came to the same conclusion. His evidence was simply not credible. He called no witnesses to support his testimony and his evidence was inconsistent with the other evidence in particular the video clip which showed no indication the young girl consented to anything. Instead it showed a fearful cornered animal being mercilessly assaulted.
11. I cannot comprehend the victims evidence that subsequently she and the defendant made up and resumed their relationship. That was what she told the court. But that may have been because the defendant had possession of the video clip which at the push of a button could be circulated for the whole world to see.
12. In terms of the rape this is a bad case although not as severe as some. Its aggravating features include the vulnerability of the victim who was alone in an isolated area, her young age compared to the older defendant, his use of threats, objects and physical force to subdue and overcome the victims protestations and refusals, the undoubted psychological scarring the victim would have suffered from the offending and her ordeal and how as per the victim impact report it has affected her ability to trust all males and relationships. I do not accept however that the offending was pre-meditated. I believe it to be something that came upon the defendant in the heat of the moment. I cannot accept on the evidence adduced that he entered the gulley intending to isolate, subdue and rape the complainant who after all was his girl friend.
13. In dealing with an appropriate start point for sentence for rape the court must follow the approach approved by the Court of Appeal in Key v Police [2013] WSCA 3. And assess where in the sentencing bands this case should fall. Prosecution have suggested that it lies in the B3 sentencing band of 14 to 20 years in prison.
14. Considering all the circumstances however I am of the view it falls more in the B2 sentencing band namely a period between 9 to 15 years in prison. It is not similar to the two cases cited by the prosecution of Police v Alenepi 03 July 2014 because that was a case of multiple offending over a long period of time commencing when the complainant was very young. Or Police v Fetaiai 18 December 2013 where the offender had previous convictions for rape. And I note both those case involved rapes on young relatives.
15. Considering the circumstances of your case I start sentencing for rape which carries a life imprisonment maximum penalty at the mid-point of the B2 range. That I believe is consistent with the degree of violence involved and the other circumstances. A mid-point of that range is a start point of 12 years in prison. But you are eligible for certain deductions which your lawyer has referred to in his submissions. The first one being the fact that you have a good pre-sentence report which outlines your history of service to your family, church and community. It also attaches references as to your character. For those matters the court makes a deduction of 6 months from the start point for sentence leaves a balance of 11½ years in prison. There has been a traditional reconciliation in this matter. That has been confirmed by the probation office as well a fine has been paid to the Alii and Faipule of your village again confirmed by the probation office in their report. In recognition of those matters I deduct another 6 months from sentence leaves a balance of 11 years in prison.
16. There are no other deductions that can be made in respect of your sentence. In respect of the charge of rape you are convicted and sentenced to 11 years in prison.
17. On the charge of unlawful sexual connection this relates to the performing by the victim of oral sex on the defendant, that carries a 14 year maximum according to law. The court accepts the complainants evidence that this occurred. Convicted and sentenced to 2 years in prison.
18. In relation to the charge of blackmail carrying a 7 year maximum penalty. That arises out of the defendants threat to post the video recording on Facebook if the complainant talked about the incident. Again the court preferred the complainants evidence on this point. On that charge you are convicted and sentenced to 4 years in prison. In imposing that sentence I distinguish this case from Police v Pualilo 23 June 2014 because there the filming and the threat were made in the course of a consensual sexual encounter. That was not the case here.
19. On the next charge of unlawful intimidation maximum of 1 years this is a charge the defendant pleaded guilty to. Arises out of threats that he made to the complainant. Making the appropriate discounts for mitigating factors the defendant is convicted and sentenced to 6 months in prison.
20. On the next charge of voyeurism, that carries a maximum penalty of 5 years in prison. It is sad to observe that the court is seeing this offence come before it more and more. This offending represents all that is undesirable in the modern world we live in. Because it involves images of a pornographic and sexually explicit nature that some people seem to enjoy circulating, especially using cell phones. It involves a misuse by defendants of good and useful technology for their own perverse purposes. In previous cases before the District Court as well as this court imprisonment terms have been imposed. There is no question a strong response to this sort of offending is required from the courts . To prevent such behaviour taking root in a country which espouses Christian values and a cultural life style. This sort of offending is a threat to both. And this case is a bad example of this sort of offending.
21. An appropriate start point would be 4 years in prison. Again the appropriate deductions need to be made. The first would normally be a significant deduction for the defendants guilty plea but in this case the victim had to give evidence and part of her evidence included a reference to these issues of the filming of her and the matter of voyeurism. Only limited value can therefore be placed on the guilty plea in those circumstances. I deduct 6 months leaves a balance of 3½ years. Again the defendant is entitled to a deduction for his good background and clean record. I deduct 6 months. Leaves a balance of 3 years. In respect of the apology that was rendered in the customary fashion again he is entitled to a deduction for that I deduct 6 months leaves a balance of 2½ years. In respect of this charge the defendant will be convicted and receive a sentence of 2½ years in prison.
22. In relation to the next charge of indecent assault maximum of 5 years. This relates to the digital penetration by the defendant of the complainants private part. Making the appropriate deductions for the defendants guilty plea and other mitigation factors he is convicted and sentenced to 18 months in prison.
23. On the next charge of causing injury maximum of 7 years. It is noted that the injuries to the complainant included bruising, swelling of her shoulders, scratches and superficial lacerations as well as swelling and bleeding from her left eye. Bearing in mind those injuries and the fact that objects were used to inflict them and allowing for the appropriate deductions convicted and sentenced to 3 years in prison
24. On the remaining two charges of armed with a dangerous weapon namely stones convicted and sentenced to 9 months in prison.
25. And on the final charge of insulting words convicted and sentenced to one month in prison.
26. All these imprisonment term are to run concurrently, which means that the defendants term is 11 years in prison for this offending. But his remand in custody time awaiting sentence of the court is to be deducted from that term.
    

JUSTICE NELSON