Child rapist to appeal sentence
The Court of Appeal has dismissed an attempt by a man found guilty of raping a six-year-old to overturn his conviction but allowed him to challenge a 14-year prison sentence.
Tamapa’a Siueva of Utuali'i, who was 18-years-old at the time of his offending, was tried in the Supreme Court last August and found guilty of one count of rape, three counts of sexual connection with a child under 12 years, and one count of an indecent act on a child.
The assessor trial, held in relation to events occurring in 2017, was presided over by Justice Tafaoimalo Leilani Tuala-Warren; it concluded in Siueva receiving a sentence of 14-and-a-half years.
Siueva, who is now 21, appealed against both his conviction and sentence to the Court of Appeal.
But in a judgement handed down last Thursday the Appeal Court ruled that Siueva could not use new evidence as the basis for an appeal against his conviction. But the Judges did grant the accused the opportunity to return to the Supreme Court to challenge the length of his sentence.
Presiding over the matter were Justice Vui Clarence Nelson, Justice Robert Lloyd Fisher and Justice Rhys Harrison.
The prosecution case was that on or about 27 March 2017 Siueva was watching a rugby match being played at a local school.
He approached a six-year-old as she walked past him on her way home, whereupon he led her to nearby bushes on the pretext of enlisting her assistance to find money; the crimes took place in the shrubbery.
“She cried out but Siueva covered her mouth in an attempt to prevent her from attracting attention," the Appeal Court found.
At trial, the victim demonstrated the actions of Siueva and testified he had extensively perpetrated sexual assault upon her.
But Siueva attempted to introduce "fresh evidence" in the case via his appeal on the basis of a 6 September 2017 report, prepared by Dr. Ulai Tapa Fidow, who conducted a medical examination on the victim about one week after the offending took place.
Dr. Fidow reported that an examination did not suggest the victim had been penetrated.
The prosecution disclosed the existence of this report before trial to Siueva's defence counsel, Alex Su'a, and advised they did not intend to introduce it into court because Dr. Fidow was not available to appear in the trial.
Mr. Su’a did not object or apply to the Court for an order to produce the report despite its author’s absence.
But the Prosecutor in the case, Leone Su'a – Mailo, objected to the defence's reliance on the medical report as the basis for their appeal against his conviction.
The Appeal Court noted that the report did not rise to the standards required of fresh evidence in appeal matters.
The court found that the evidence was, on its face, not new and therefore did not meet the required threshold for evidence that could be considered to support an acquittal.
“We are not satisfied that the report would have been determinative of the issue of penile penetration” the court ruled in dismissing Siueva’s application to introduce fresh evidence.
The Appeal Court also ruled that it was not convinced by the argument that the assessors in the original trial had reached an unreasonable conclusion.
“To the contrary, it had a sound evidential foundation. The assessors had the advantage of seeing and hearing the victim giving evidence in chief and under cross examination. Notably, she was consistent in her assertion of penile penetration when challenged by Mr. Su’a," the Judges concluded in dismissing the argument.
“Even after agreeing that Mr. Siueva’s penis was [not erect], she repeated that penetration occurred. A six year old child giving evidence of harrowing events which occurred two years earlier will inevitably suffer a degree of confusion.
“However, what is striking about the victim’s evidence in this case is its consistency throughout on the core allegation of penile penetration.”
The third ground for Siueva's appeal related to sentencing.
The defence argued that Justice Tafaoimalo had adopted as his starting point for sentencing a term of 18 years' imprisonment.
She placed weight upon aggravating features of the offending, namely: premeditation; the victim’s extreme vulnerability and age; the extent of harm and violence involved in the offending, depravity and the cruelty of the offending.
“She placed weight on the sentencing principles of deterrence, accountability, and protection of the interests of the victim and of the public in general, particularly young children," the court ruled.
The Court of Appeal justices ruled they were satisfied that the starting point adopted by the Judge, while stern, was within an appropriate range for the crime committed. According to judicial guidelines, they found that the offending fell clearly within rape band three.
“The only issue is whether the Judge allowed a sufficient discount for [the defendant's] age and previous good character," the decision read.
The Justices ruled that Mr. Su’a submitted that the length of the sentence was excessive given Siueva's immaturity and inexperience in life. Those factors, the defence argued, justified greater leniency in sentence.
"There are a number of unsettling factors in this case. One is that an 18 year old man of otherwise good character would commit crimes of such depravity on a young girl," the Judges ruled.
"His actions were apparently completely out of character and without any explicable reference to his background. In this respect it is of concern that apart from a short pre-sentence report and brief character references there was no material before the sentencing Judge on which she might take account of the effect of Mr. Siueva’s youth or his mental condition.
“Accordingly we are allowing the appeal against [the] sentence and remitting its determination to the Supreme Court for reconsideration with the benefit of further material such as for example a mental health analysis and a supplementary pre-sentence report.
“Further information on Mr. Siueva’s background, such as from his family, school friends and the wider community would undoubtedly also assist.”