[the names of the complainant, her family and her village are suppressed]

supreme court of samoa
Police v Lolesio [2012] WSSC 127

Case name: Police v Luafau Palalaua Sefo Lolesio
Citation: [2012] WSSC 127
Decision date: 23 November 2012  
Parties: police (prosecution) and luafau palalaua sefo lolesio male of Falealupo
Hearing date(s): 29 – 31 October 2012
File number(s): 
Jurisdiction: CRIMINAL
Place of delivery: MULINUU
Judge(s): justice slicer
On appeal from:
Order:
Representation: 
R Titi for the prosecution
A Roma for the defendant
Catchwords: 
Words and phrases:
Legislation cited:
Crimes Ordinance 1961 ss.47, 50
Cases cited:
Police v Filipo [2011] WSSC 127
Police v Sione [2011] WSSC 128
Police v MT [2011] WSSC 70
Police v PL [2012] WSSC 22
Police v TL [2012] WSSC 60
Police v Teevao [2012] WSSC 64
R v Hunter (1984) 36 SASR 101
Cobiac v Liddy (1962) 11 CLR 257
Police v Lole [2012] WSSC 27
Summary of decision:

in the supreme court of samoa
held at mulinuu
between
police
Prosecution
and
luafau palalaua sefo lolesio male of Falealupo
Defendant

Counsel:	R Titi for the prosecution
A Roma for the defendant
Hearing:	29 – 31 October 2012
Sentencing Hearing:	19 November 2012
Sentence:	23 November 2012
Charges:	Rape and Sexual Intercourse with Girl Living with Him as a Member of His Family

sentence OF slicer J
1.	Luafau Palalaua Sefo has been convicted by assessors, of one charge of rape and two of unlawful sexual intercourse contrary to the Crimes Ordinance 1961 sections 47, 50.  The crimes were committed against a girl aged 16 (turned 17 during the period of the crimes) who was living as part of the defendant’s household.  The verdict of the assessors can be interpreted as a finding that she initially accepted her fate but withheld consent on 8 March, that they were not satisfied beyond reasonable doubt of the initial acts of unlawful sex that were not reported by the victim and, absent recent complaint, they were satisfied that there had been unlawful sex but not satisfied beyond reasonable doubt that the acts amounted to rape.
2.	The defendant was convicted of rape which occurred on 8 March 2012 (which resulted in a complaint) and of two acts of unlawful sexual intercourse in the months of September and October 2011.  The Court will interpret the verdict on the second basis stated above.
3.	The unlawful sexual activity occurred within the family home and while the girl’s mother was away because of her work commitments.
4.	The defendant is not entitled to the benefit of a plea of guilty.  The acts were a breach of trust.  Counsel for the defendant stated at the sentencing hearing that the defendant was remorseful for his conduct.  However, the Court notes that the probation report states:
“He stated that there was never a time that he forced himself on the victim, but he shifted the blame on the victim stating that she had initiated the act of sex on him on both occasions.
He somehow stated that after being held in custody for 8 months he has felt extremely remorseful and begs the Court to show mercy on him when passing sentence.  Police records show that Luafau is a first offender.”
5.	He has, in fact, been in custody for 8 weeks pending trial and allowance will be made for that period.  His claim of remorse made through counsel loses strength because of his statement to the probation service.
6.	The prosecution suggests 20 years as a commencing point [of not less than 20 years].  It denies the Court’s question that the period chosen is arbitrary and the period seems to be a standard suggestion made in every case involving rape.  This case is more complex because of the verdicts of the assessors.  The Court repeats its analysis of the sentencing parameters made in P v Filipo [2011] WSSC 127 and P v Sione [2011] WSSC 128.  The case of MT [2011] WSSC 70 involved 3 acts of rape and the pregnancy of the girl.  PL [2012] WSSC 22 concerned 8 events and a threat to kill, and TL [2012] WSSC 60 dealt with serious injury caused by the rape.  Teevao [2012] WSSC 64 involved 10 counts of rape and 5 indecent assaults on a 14 year old and resulted in an actual term of imprisonment of 15 years for 15 crimes.
7.	Nevertheless, the crimes are serious and a betrayal of trust.  Here the act of rape was by simple force, unaccompanied by violence or threats.  The Court will use 15 years as a commencing point for rape and 18 months for each of the acts of unlawful sex.
8.	The victim impact statement shows that the complainant has suffered psychological harm and suffered the derision of her friends.  She remains in fear of the defendant and is afraid to be alone.
9.	The defendant aged 66 has no previous convictions.  He family has been banished from his village.  He is the father, by birth or adoption, of 8 children.  He has had limited education.  It is reported that he has been a good provider for his family and has rendered good service to his village as a matai, and to his church.
10.	Some allowance will be made for his age which creates additional problems through imprisonment (R v Hunter (1984) 36 SASR 101; Cobiac v Liddy [1962] 11 CLR 257; Police v Lole [2012] WSSC 27).
11.	His background permit’s the Court to reduce the starting point for rape to 10 years and the unlawful sexual intercourse offences to 12 months, cumulative to the head sentence, but concurrent to each other.  That result takes into account the 2 months already served.
12.	The actual sentence is that of 11 years imprisonment, effectively 11 years and 2 months.
ORDERS:
(1)	Luafau Lolesio Sefo be convicted of the crimes of rape and unlawful sexual intercourse.
(2)	Luafau Lolesio Sefo be sentenced to 11 years imprisonment, such sentence to commence as and from 19 November 2012.
(3)	The names of the complainant and her village are suppressed.

…………………………
    (JUSTICE SLICER)