Director of Public Prosecutions v Afoa Naoai

[2025] VCC 1013

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-25-00217

DIRECTOR OF PUBLIC PROSECUTIONS

v

SALEAULA AFOA NAOAI

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	11 June 2025, 1 July 2025, 16 July 2025
DATE OF SENTENCE:	16 July 2025
CASE MAY BE CITED AS:	DPP v Afoa Naoai
MEDIUM NEUTRAL CITATION:	[2025] VCC 1013

REASONS FOR SENTENCE
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Subject:Criminal law

Catchwords:              Aggravated burglary, rape, sexual assault

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Salvaggio v The Queen [2022] VSCA 88; DPP v Ross Gregory Cartwright [2015] VSCA 111; Mingdong Gao v The King [2023] VCC 2058

Sentence:                  Term of imprisonment for a period of 14 years and four months, with a non-parole period of nine years and two months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J. Shaw	Office of Public Prosecutions
For the Accused	Mr I. Siriwardana	Victoria Legal Aid

HER HONOUR:

1Saleaula Afoa Naoai, you have pleaded guilty on indictment to one charge of aggravated burglary, two charges of rape and one of sexual assault.

2In sentencing you for these crimes, I must have regard to the maximum penalties for the offences you have committed. Aggravated burglary and rape each carry a maximum penalty of 25 years imprisonment. Sexual assault carries a maximum penalty of 10 years imprisonment. These maximum penalties reflect the seriousness with which Parliament regards each of these offences.

3In a matter I will return to at a later stage, the charges of rape are each standard sentence offences with the relevant standard sentence being one of 10 years imprisonment.

4The circumstances of your offending were set out in a document entitled ‘Amended Plea Opening' dated 15 July 2025. This is an agreed document, and it represents your acceptance of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.

5Whilst I have had recourse to the full document, and it was just read to the court, I propose to refer to some of the facts so that the gravity of your offending and the factual context can be fully understood.

The offending

6As of 4 September 2024, you were ordinarily a resident of Tasmania, but visiting your cousin at an address in Gallop Court, Truganina.

7Your victim, Ms Leila Robinson,[1] was not known to you and lived at an address next door to your cousin with her seven-month-old baby. She was 15 weeks pregnant. She lived with her nephew, his wife and their four children. At the time of your offending, Ms Robinson's nephew, his wife and two of his children were overseas. She was alone in the house with her baby and two of her nephew's children aged five and three years.

[1] A pseudonym.

8You were picked up by your cousin from Melbourne Airport on 2 September 2024 and taken back to your cousin's house in Gallop Court, Truganina.  

9The following day, you and your cousin were driving past your victim's address and your cousin waved to Ms Robinson. She thanked your cousin for putting the bins out the day before. You asked your cousin if she was 'the girl that lives there' and he told you that she was and that she was the aunt of his brother-in-law.

10On returning home, your cousin went to work. He completed his shift at around 9.30 pm and the two of you began to drink alcohol when he came home. By 4 am on 4 September 2024, you were both drunk and went to your respective bedrooms.

11At approximately 4.15 am on 4 September 2024, Ms Robinson was feeding her baby in bed. Her three-year-old nephew and five-year-old niece were sleeping in cots next to her bed. She heard someone enter her bedroom and saw you standing in her room. These facts form the basis for Charge 1, aggravated burglary.

12She asked who you were and what you were doing there. You held your finger to her mouth and told her to “shoosh”. You told her not to worry and climbed into bed with Ms Robinson where you used your body to push her in to the middle of the bed.

13When she begged you, “No, no please don't do this”, you grabbed her by the wrist and told her to “fucking shut up”.

14You then forced her to masturbate you and told her that she was beautiful and that you really liked her. This is an uncharged act which sets the scene for what was to follow.

15Ms Robinson was fearful for herself and the children and in an effort to placate you, told you that you were handsome. Her baby was still in the bed and she wanted to move him. You responded with “no, let him watch”. Ms Robinson did manage to persuade you to let her put her child in one of the cots.

16When she returned to the bed you grabbed both of her legs and pulled her to the end of the bed where you stood above her and directed her to remove her pants. When Ms Robinson refused, you got angry, told her to take her “fucking pants off” and forcibly removed them.

17You then lay on top of her and entered her vagina with your penis. Ms Robinson felt pain as you entered her. You took hold of each of her wrists, held them above her head and forcibly penetrated her. You told her that you loved her and demanded that she say the same to you. These facts form the first occasion for Charge 2 – rape. Charge 2 is a rolled-up charge comprising two separate occasions of rape in the one charge.

18You then penetrated her vagina with your tongue before moving up her body and putting your tongue in her mouth and then returning to again penetrate her vagina with your tongue. You kept hold of the victim's hands, only releasing them each time you moved up her body, to put your tongue in her mouth. You did this five times as part of a continuing act. These facts form the basis for Charge 3 – rape and Charge 4 - sexual assault. Each are said to also be rolled-up charges reflective of five occasions of rape and five occasions of sexual assault contained within each respective charge.

19Ms Robinson told you that she needed to vomit. You told her that she would be fine.

20You then demanded that Ms Robinson suck your penis. When she told you that she does not do that you replied with “fuck you”.

21By this point, your victim was breaking down and openly praying. You told her not to and put your hand over her mouth. She was sore and trapped under your weight.  She began to cry and told you that you were hurting her. Your response was that you would “go slow”.

22Ms Robinson then told you that she needed to go to the bathroom and pushed at you in order to get up. Whilst you allowed her to use the toilet, you would not let her shut the door. When she returned to the bedroom you pushed her forward on the bed and again penetrated her vagina with your penis from behind and did so repeatedly. This fact also forms part of the factual basis for Charge 2, being the second of two occasions on which you penetrated Ms Robinson with your penis.

23

Ms Robinson’s five-year-old niece Mary[2] woke up at this point. When

Ms Robinson told you to leave and that you could not let the child watch, you responded with “but my dick's not satisfied”. You agreed with your victim's suggestion that you leave and come back later.

[2] A pseudonym.

24When you left, Ms Robinson immediately locked the door and called emergency services. During this ordeal, you had requested that she add you on Facebook. Believing that this would assist you to be identified she did so. When police attended, she told them what had happened and that you were staying at the address next door.

25You were subsequently arrested at that address. When asked questions by police in formal interview you answered “no comment” to all questions, as is your right.

26You refused consent for a DNA swab of your penis, but this was subsequently ordered by the Magistrates Court.

Offence gravity and victim impact

27The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process, by informing the court about the effects of the crime upon them.

28Ms Robinson has provided a victim impact statement which tells me that she experienced physical pain during her ordeal. Your actions made her fearful and to sleep with the lights on. Her mental health was affected, and she became angry and lost control of her emotions. She struggled to look after her young son. She came to hate her community as they were a reminder of what had happened, and she had lost a source of support as a result. She moved countries. You have made Ms Robinson feel dirty and disgusting when she has done nothing wrong.  Fortunately, she finds some comfort in her faith.

29Your offending can only be described as every woman's worst nightmare.

30When Ms Robinson realised you were inside her premises in the early hours of the morning, one can only imagine her fear, her fear for herself, her unborn child, her baby and her young niece and nephew. She must have been terrified for every single second.

31You were on your own, were not said to have a weapon and are thought to have entered through an unlocked door but, regardless, you were inside her home, where she was entitled to feel safe and secure and that her family members would also be.

32Your intent on entry is informed by what happened once you were inside the premises, although you are not to be punished in that charge for the offending which did occur thereafter. Nevertheless, entering a private residence with an intention to assault and to sexually assault represents very serious criminal offending.

33As referred to earlier, Charge 2 is a rolled-up charge comprising of two incidents of rape. Rolled-up charges can only proceed on a guilty plea and with the offender's agreement and allow for more than one instance of offending, to be dealt with in one single charge. I must still consider all of the circumstances of the offence and those of the offender.

34Charges 3 and 4 are also each rolled-up charges and were part of a series of events contained within what occurred overall. This should and will moderate the cumulation between these two charges.

35On any view of it, your sexual offending against Ms Robinson was protracted. You were inside her premises for one and a half hours, during which you offended against her again and again and again. At various stages, your actions were demeaning, humiliating, insulting and aggressive. You ignored your victim's obvious fear, disgust and pleas for you to stop. You told her to stop when she resorted to praying. Whilst opportunistic, your offending is laced with a sense of entitlement and is sexual violence. You sought to use her fear for herself and fear for the children, once you were aware of their presence, to exact a degree of compliance.

36Your offending is further aggravated by the repeated opportunity to desist - yet you did not, your failure to wear a condom in relation to Charge 2 exposing your victim to potential disease and, as perhaps I have already referred, your preparedness to offend in and use the presence of young children.

37A VARE statement taken from Mary detailed how a man “sneaked” into her home and hurt her “nanny”.  

38You only left Ms Robinson's premises once Mary woke and your victim suggested that you return later that morning.

39Your moral culpability for this offending would appear to be high. Your behaviour was chilling, shocking and abhorrent.

40Sentencing principles of general deterrence, denunciation and protection of the community loom large. 

Plea of guilty

41

The Sentencing Act1991 obliges me to take into account the stage at which you entered your guilty plea. The chronology made available to me indicates the matter was committed to this court after a third committal mention held on

14 February 2025. I accept that until the charges and the factual basis for them were settled between the parties, that you were not in a position to plead guilty. Yours is therefore a plea of guilty at an early opportunity.

42There is clear value in saving the witnesses of the need to give evidence, particularly the victim of having to relive distressing and traumatising events.  There is utilitarian value in saving the community the time and expense of contested proceedings. 

43Your decision to plead guilty has value in providing both certainty and finality to all parties.

44I was told that the victim impact statement was read to you and you apologised to the victim through your counsel. This is something to which I attach little if any weight. I find remorse hard to discern, but I accept that you have taken responsibility for your wrongdoing.

45These factors will be taken into account in your favour.

46I turn now to your personal circumstances.

Personal Circumstances

47Your personal circumstances have been helpfully outlined in defence submissions and the report of clinical and forensic psychologist Dr Mathew Barth, that report being dated 29 May 2025.  

48You were aged 24 years old at the time of the offending.  You are now 25.

49

You were born in Fogasavaii, a village on the island of Savai'i in Samoa. You are the fourth of five children to your parents' union. Your parents separated when you were two years old. Upon their separation, you lived with your father who

re-partnered. You now have nine brothers and four sisters in total.

50You were raised by your oldest sister, whom you believed was your mother. It was only recently into your adulthood that this was made known to you. Having since discovered the identity of your mother; you have been able to form a connection with her. You instruct that she has been diagnosed with cancer. You had been providing financial support to her during this time.

51You report an unstable and abusive family environment. In your younger years, you were subjected to harsh discipline and violence at the hands of your father. On one occasion, your father used a machete to 'discipline' you. This particular incident left you with a scar on your left hand.

52In terms of your education, you left school at age 13 to care for your father who had fallen ill. You were also charged with the responsibility of younger siblings. Your father died in 2019. You attempted to return to school after your father's death but struggled academically. Your education was disrupted by your family circumstances. Your understanding of the English language remains very limited, and you required the assistance of an interpreter to participate in your legal proceedings.

53Whilst entirely from your self report, your background would indicate an experience of significant childhood trauma, which do I take into account in a general sense. I have little doubt this has shaped the man you have become. I do not have a basis to form the view that this contributed directly to your offending.

54Since leaving school, you have been employed in some capacity. You engaged in agricultural and factory work in various industries. You travelled to New Zealand for nine months in 2021, where you were employed as a fruit picker. You subsequently came to Australia in March of 2024 as a Pacific worker on a three-year seasonal visa. Prior to your remand, you were employed at a meat distribution company in Tasmania. You were on a break from that work when you came to Melbourne to stay with your cousin.

55You report being in a de facto relationship when you were 19 years old.  You were unable to detail the length of this relationship, but have two children to your former partner. Your children are currently in the care of your mother in Samoa. You are not said to play an active role in your children's lives. You have previously had several casual sexual and short-term relationships and are currently single.

56In terms of your substance abuse history, you commenced drinking alcohol when you were 19 years old. What began as a social exercise, steadily increased and became binge drinking. You report being 'very intoxicated' on the night when this offending occurred.

57You began using cannabis when you were 17 years old. Again, what began as social use, increased to more frequent use - “when [you] could get it”.  You had also been using cannabis on the night of this offending.

58Your use of alcohol and cannabis affords no explanation or excuse, nor was it suggested on your behalf that it should.

59You report a history of depression and anxiety. Dr Barth opines that the abuse and mistreatment you endured as a child appeared to undermine your self-esteem and leave you with an underlying fragility. It might also explain your later resort to the abuse of alcohol and cannabis.

60More recently, you were involved in a traumatic event in which your niece “went missing in the bush” and died. You were the person who had the misfortune to find her body. This was understandably a distressing event for you.

61You have not had any contact with your family since you were remanded for this matter. Your family has limited means by which communication is possible. I was told their village uses transistor radios to communicate, which limits the ability to communicate. You also instruct that customary law in your village dictates that the High Chief will banish a person and on some occasions, the entire family, due to their misdemeanours. You fear this outcome if your offending becomes known in your village and this has been a significant source of anxiety for you.

Expert evidence

62In terms of the expert evidence, in his report dated 29 May 2025, Dr Mathew Barth, Psychologist, describes you as both reserved and guarded in the assessment process. You were reluctant to discuss personal or sexual matters in any real depth. Rapport was ultimately established, and you were otherwise described by him as unsophisticated and as a person who approaches emotional and interpersonal matters in an immature and simplistic way. Whilst only referencing portions, I have had regard to the entirety of his report.

63Dr Barth was of the opinion that your early childhood experiences have undermined your self-esteem and that you present with a degree of fragility.  I have already referred to this.

64Dr Barth diagnosed you with Adjustment Disorder, with mixed anxiety and depressed mood. Your alcohol and drug usage has been such that you were also diagnosed with Alcohol Use Disorder and Cannabis Use Disorder.

65

You have been stressed in the custodial setting and have limited coping skills.  

Dr Barth expressed concerns about a further deterioration in your mood, if you are unable to access psychological treatment and support and I take this into account in a general sense.

66You were unable to engage in any meaningful discussions with Dr Barth in relation to your offending. You placed emphasis on your heavy intoxication from alcohol and cannabis and claimed you are unable to recall the offending. I find this difficult to accept. Dr Barth saw your offending as pointing to interpersonal and sexual difficulties of “serious proportions”. You had difficulty describing the elements required for informed consent. He saw your offending as indicating a propensity to resort to forcible sexual behaviour for your own gratification. Your risk of sexual recidivism fell within the moderate – high risk category. In Dr Barth's opinion, there was an unequivocal need for you to participate in specialist treatment programs as soon as possible.

67The unexplained reasons for your offending and the very grave nature of it mean weight still needs to attach to the sentencing principles of specific deterrence and protection of the community. It also makes it difficult to fully assess your prospects for rehabilitation, an area to which I now turn.

Prospects of Rehabilitation

68You have no criminal record.

69You have been in custody since your arrest on 4 September 2024. The lack of contact with your family, in combination with the language barriers in custody have served to isolate you. There has to be a degree of sanction and deterrence in what you have experienced to date and are likely to experience into the future.

70

You are understandably worried about your mother's health, as your relationship is relatively new and you had been assisting her financially to fund medical treatment. She is unaware of your current circumstances and I accept that you would be concerned for her. In combination with the concerns expressed by

Dr Barth, this constellation of factors will make your time in custody more difficult. I take this into account again in a general sense.

71As a Samoan citizen, it is almost inevitable that you will be returned to the country of your birth. Whilst you have not made a significant life for yourself in Australia as far as has been known to me, your concerns about the potential ramifications for you and your family upon your return is another factor that weighs upon you, and I also take this into account.

72I accept also that you were to be sentenced on 1 July 2025, after an initial plea hearing on 11 June 2025, but that due to an issue raised with the parties, your sentencing has to be adjourned to today's date and this would have added to your uncertainty.

73Your future prospects will be impacted by your time in custody undergoing sentence which will understandably be for a lengthy period of time. Otherwise, your rehabilitation requires urgent focus on offence specific treatment in accordance with the unchallenged expert opinion.

74However, given your lack of prior history, relative youth and need for extended treatment, I do still see a bases to place some emphasis on your rehabilitation in your sentencing.  

Sentencing Principles

75No application has been made for you to be placed on the Sex Offenders register and I do not propose to do so.

76Rape is a Category 1 offence under the Sentencing Act 1991. A sentence of imprisonment must be imposed. As referred to earlier, the charge of rape carries a standard sentence of 10 years.

77The standard sentencing scheme became effective on 1 February of 2018 and applies to offences committed after that date.

78The period specified as the standard sentence is “the sentence for an offence that, taking into account only the objective factors, affecting the relative seriousness of that offence, is in the middle range of seriousness”.[3]

[3] Sentencing Act 1991 (Vic), s5A(1)(b).

79In determining the objective factors, the court must consider only the nature of the offence and not your personal circumstances. This determination is only intended to give content to the hypothesised mid–range offence. Nothing in the scheme circumscribes the manner in which the court is to assess the seriousness of the offence.

80Pursuant to s11A(4)(c) of the Sentencing Act 1991, the court is required to set a non-parole period of not less than 60 per cent of the head sentence, if the court is sentencing the offender to a head sentence of not less than 20 years, unless it is not in the interests of justice to do so.

81The Court of Appeal has said that the key requirement is for the court to take into account the standard sentence as a relevant sentencing factor, but as with the maximum penalty, it is a legislative guidepost. It does not reflect the instinctive synthesis, it does not permit 'two-stage sentencing', or otherwise affect matters the court may or must consider when sentencing. A court does not start by asking whether or not the standard sentence should be imposed and then work its way up or down.

82It is submitted by the Crown and conceded by you, that for each charge of rape to which you have pleaded guilty, the circumstance objectively reflects an offence which is above the 'mid-range' in terms of its seriousness.

83Charges 2, 3 and 4 on the indictment are each a 'serious sexual offence' pursuant to Schedule 1 of the Sentencing Act1991.

84Once you have been convicted of two or more serious sexual offences, for each of which you are to be sentenced to a term of imprisonment, you do fall to be sentenced as a ‘serious sexual offender’ pursuant to Part 2A of the Sentencing Act 1991.

85Section 6D of the Sentencing Act provides that when sentencing you as a serious sexual offender, I must have regard to the protection of the community as the principal purpose for which the sentence is imposed.

86Section 6E provides that unless otherwise directed by the court, every term of imprisonment imposed on a serious offender must be served cumulatively.

87In all of the circumstances, I do not consider that a disproportionate sentence should be imposed and the prosecution did not seek that I should.

88Totality remains a principle which has an important role to play in your sentencing. The totality principle requires that where an offender is being sentenced to multiple terms, or is otherwise to serve multiple sentences, then the sentencer should ensure that the total sentence remains one which is 'just and appropriate' for the whole of the offending. This is a significant matter in sentencing you.

Sentencing Submissions

89Each party sensibly submits that all relevant sentencing considerations can only be reflected in the imposition of a head sentence with a non-parole period. It is also accepted that this sentence will be one of some length.

90Your counsel has referred me to a number of cases said to be comparative.

91Salvaggio v The Queen

[2022] VSCA 88, dealt with a finding of guilt after a trial for charges of aggravated burglary with intention to sexually assault, rape and sexual assault of a single victim. The factual circumstances were not unlike those in your case, but perhaps a less grave set of circumstances. There was a separate charge of stalking related to another victim. Mr Salvaggio was sentenced to eight years for the charge of aggravated burglary (the base sentence), eight years for rape and ten years for the charge of sexual assault, with one year cumulation for the charge of stalking and the charge of sexual assault and four years for the rape.

Mr Salvaggio received a total effective sentence of fourteen years imprisonment with a minimum of eleven years before being eligible for parole. The Court of Appeal maintained the individual sentences but impacted the orders for cumulation. The charge of rape was not a rolled-up charge and was not subject to the standard sentencing scheme, due to the date on which the offending was committed.

92DPP v Ross Gregory Cartwright [2015] VSCA 111, was referred to me regarding the making of an order under the Sexual Offenders Registration Act 2004 and was therefore not provided as a comparative case for sentencing purposes.

93Mingdong Gao v The King [2023] VCC 2058, was a sentence of this court. Mr Gao had pleaded guilty to charges of threat to kill, aggravated burglary and rape. The factual circumstances were markedly different.

94I have had regard to each of those cases and note there are understandable differences. They have still been of some assistance. Members of counsel, I am about to commence the sentencing phase, are there any matters that either of you need to raise or wish to raise?

95MR SHAW: Two very small factual matters. Your Honour referred to the three and the five-year-old children as nephews, they are actually great nephews of the complainant.

96HER HONOUR:  Thank you for that.

97MR SHAW: Similarly, another small matter, Your Honour said that the offender held his finger to the complainant's mouth and told her to shoosh.

98HER HONOUR:  No, it was to his mouth.

99MR SHAW:  He actually held it to his own mouth. 

100HER HONOUR:  Yes, I was aware, but thank you for the correction.

101MR SHAW:  Yes.

102HER HONOUR:  Things do get lost sometimes - - -

103MR SHAW:  It may have just been a slip.

104HER HONOUR:  - - - on running.  Thank you.

105MR SHAW:  Yes, thank you Your Honour.

106MS SIRIWARDANA:  I have no matters to raise, thank you Your Honour.

107HER HONOUR: Thank you very much.

Sentence

108The basic purposes for which a court may impose sentence are just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.

109In sentencing you, I must have regard to a range of matters which include the seriousness of the offending, your culpability for it, your personal circumstances and of course those of your victim. I must balance the interests of the community in denouncing criminal conduct, with the interest the community clearly has in seeking to ensure, where possible, that offenders are rehabilitated and safely reintegrated into society.

110I have taken into account the sentencing purposes referred to in section 5 of the Sentencing Act 1991, where relevant to your case, and the current sentencing practices for the offences to which you have plead guilty, as well as the important principles of totality and proportionality.

111I sentence as follows:

(a)   Charge 1 – Aggravated burglary, you are convicted and sentenced to five years and six months imprisonment.

(b)   Charge 2 – Rape, you are convicted and sentenced to twelve years imprisonment. This is the base sentence.

(c)   Charge 3 – Rape, you are convicted and sentenced to twelve years imprisonment.

(d)   Charge 4 – Sexual assault, you are convicted and sentenced to four years and eight months imprisonment

112Your term of imprisonment as imposed on Charge 4 requires you to be declared a ‘serious sexual offender’ and I make that declaration.

113Ten months of Charge 1, 12 months of Charge 3 and six months of Charge 4 are cumulative on the base sentence and on each other.

114The total effective sentence is therefore one of fourteen years and four months imprisonment. You are to serve nine years and two months before being eligible for parole. 315 days are reckoned as having already being served.

115Section 6AAA of the Sentencing Act 1991 requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges. If not for your pleas of guilty, I would have sentenced you to 17 years and 10 months' imprisonment, with a minimum of 13 years and six months before you would be eligible for parole. I thank the interpreter for his assistance. I thank counsel for their assistance and Ms Siriwardana if you wish to use the link, you are able to do so.

116MS SIRIWARDANA:  Thank you, Your Honour.

117HER HONOUR:  Anything else?

118MR SHAW:  No, Your Honour.  Thank you.

119HER HONOUR:  All right thank you very much. I will close the court till 9 o'clock tomorrow. Thank you.

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