“Notwithstanding all that, the customary process of reconciliation with the victim’s family and forgiveness by them is, in my view, important in our culture. It is an essential part of our social fabric as Samoans…” – Justice Vui Clarence Nelson
A 59-year-old man convicted of raping a mentally ill woman will have seven years at Tafa’igata Prison to learn his lesson.
The sentence was handed down by Supreme Court Justice Vui Clarence Nelson.
Salepoua’e Saleimoa was convicted of sexual violation and unlawful sexual connection with the 32-year-old woman.
Saleimoa was represented by lawyer, Unasa Iuni Sapolu. Prosecuting was Leone Su’a-Mailo of the Attorney General’s office.
Justice Vui noted that at the time of the offense, the victim, who is intellectually disabled, had never been referred to any specialist organisation such as SENESE or Loto Taumafai for assistance.
The victim’s nephew informed the Court that he was standing close by during the incident.
“The complainant was crying and tried to push the defendant away. And then the assault occurred in a bushy area where the defendant had taken the complainant.
“The complainant and her younger relatives had been sent by the complainant’s older sister to a village shop on an errand when they encountered the defendant on the road.”
The Court heard that the “the defendant was walking home after a day selling his produce and by his own admission was drunk, having consumed three large bottles of Vailima povi.”
Justice Vui noted that this is a “notoriously potent brand of Vailima beer, one possibly deserving of closer examination by the government as part of its current Law Reform initiatives.
“Too often, we as judges sitting in the courts of this country have to deal with offending that arises in the context of the excessive consumption of such alcohol.”
According to Justice Vui, in the defendant’s evidence, he initially denied any knowledge of the complainant’s mental incapacities.
“But upon further questioning he admitted he was aware of her limitations.
“It was also clear he had lived in the same sub-village as the complainant all of his life and that he resides three properties away from the complainant.”
Prosecution submitted 10 years as a starting point for sentence.
They point to the special vulnerability of the victim not only because of her limited mental capabilities but also because at the relevant time she was on a deserted road in the company of very young relatives.
“None of whom with the power or wherewithal to resist a fully matured 59-year-old intoxicated defendant.
“I agree these are factors that aggravate the offending.” Furthermore the prosecution cited pre-mediation as a further aggravating circumstance.
This submission, was not accepted by Justice Vui.
“The evidence does not indicate the defendant was lying in wait to ambush the complainant, or that he had reason to believe the complainant and her younger relatives would be walking alone on the deserted road that evening.
“The offending is more of an opportunistic nature, the intoxicated defendant came upon the vulnerable group, saw his chance and took it.”
The prosecution further noted the 27 year age gap between the defendant and the victim.
“But I am of the view the difference in 'mental age' is more significant than the difference in physical ages.
“The intellectual disability of the complainant is a significant, but not overwhelming aggravating factor, personal to the offending,” said Justice Vui during sentencing.
From the victim’s impact report, Vui noted the offending had impacted the victim “in its reference to headaches, nightmares and loss of appetite post-offending.
However there was no evidence of this adduced at trial.
“I am hesitant to assign full weight to a report from the complainants sister on the condition of the complainant.
“And given the subsequent, apparently unrelated, medical events suffered by the complainant, it is almost impossible to conclude these symptoms and her current physical and mental condition can be traced back to her ordeal at the hands of the defendant.
“More specialized evidence, much of it probably unavailable in this jurisdiction, would be required before that can be given proper weight.” Justice Vui however accepted a well documented fact that sexual assaults influence long and short term behaviour and the future lives of those assaulted.
“And that such effect would be more keenly felt/experienced by the less mentally able."
Justice Vui started sentencing at eight years in prison for the defendant and noted he had since been banned from his village.
“Your banishment by your village is a traditional and appropriate punishment and is required to be taken into account.
“Your counsel has urged me to also take into consideration the customary reconciliation in this matter,” he told the defendant.
Justice Vui said neighbours of the defendant have confirmed that an apology was made. However there is no evidence the defendant played a part in the apology to the victim’s mother.
Justice Vui noted the pre-sentence report indicates the defendant remains adamant of his innocence.
“That shows a complete lack of regret or remorse and you have given no instructions to your counsel, even at this stage, to express on your behalf acceptance of responsibility for what you did or remorse therefore.
“Notwithstanding all that, the customary process of reconciliation with the victims family and forgiveness by them is, in my view,important in our culture.
“It is an essential part of our social fabric as Samoans. It is necessary for family harmony and the peace order and good governance of villages.
“Debate on the value the court should accord to this process, which does not necessarily involve the defendant and in this case did not, remains open.”