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Police v Tufuga [2022] WSDC 7 (27 June 2022)

IN THE DISTRICT COURT OF SAMOA
Police v Tufuga [2022] WSDC 7 (27 June 2022)


Case name:
Police v Tufuga


Citation:


Decision date:
27 June 2022


Parties:
POLICE (Informant) v MASOE FOGAVAA TUFUGA (Defendant)


Hearing date(s):



File number(s):



Jurisdiction:
CRIMINAL


Place of delivery:
District Court of Samoa, Mulinuu


Judge(s):
Judge Alalatoa Rosella Viane Papalii


On appeal from:


Order:
1. Fogavaa you are convicted and sentenced to 15 months’ imprisonment.

2. An order permanently suppressing or prohibiting the publication of the name and details of the victim is issued. The suppression order does not extend to Fogavaa, as defendant.


Representation:
Police for the Prosecution
Mr. T. F. Tufuga & Mr. P. Itula for the Accused


Catchwords:



Words and phrases:
Indecent act on a young person under the age of 16 years.


Legislation cited:
Crimes Act 2013, s. 59 (3);
Education Act 2009, s. 22’
Sentencing Act 2016, ss. 7(1)(f); 7(1)(g); 8;
Teachers Act 2016, ss. 2; 33;
Village Fono Act 1990, s. 8;


Cases cited:
AG v Maumasi [1999] WSCA 1;
Andrew Butler (ed) Equity and Trusts in New Zealand (2nd ed, Thomson Reuters, Wellington, 2009);
Blackstone, W, Commentaries on the law of England 441 (1765);
Brooks v British Columbia 2000 BCSC 735 [2000] BCJ 909;
Estate Realties Ltd v Wignall [1991] 3 NZLR 482 (HC) at 492 per Tipping J;
Leituala v Mauga [2004] WSSC 9;
M (K) v M (H) [1992] 3 SCR 6;
P v Amate [2011] WSSC 148;
P v Faiga [2008] WSSC 96;
P v JI [2018] WSSC 50;
P v Petelo Simaila [2021] WSDC 1;
P v Vailopa [2009] WSSC 69;
P v Laufiso Vaioalii (Unreported sentencing ruling of Tuala-Warren, J delivered on 27 September 2017);
Samoa Victim Support Group v Inoke [2013] WSDC 4;
Ulugia v AG [2010] WSCA 15;
Wagner v Radke [1997] WSSC 6;


Summary of decision:

THE NAME AND DETAILS OF THE VICTIM IS STRICTLY PROHIBITED/SUPPRESED FROM PUBLICATION


IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU


BETWEEN:


P O L I C E


Informant


AND:


MASOE FOGAVAA TUFUGA, Male of Asau


Defendant


Presiding Judge Judge Alalatoa Rosella Viane Papalii


Appearances:
Prosecution: Police Prosecution
Defendant: Mr T F Tufuga & Mr P Itula for the Accused


Sentencing date: 27 June 2022


SENTENCE

Introduction

  1. Masoe Fogavaa Tufuga (“Fogavaa”), you appear today for sentence having pleading guilty to one charge of committing an indecent act on a young person under the age of 16 years contrary to section 59 (3) of the Crimes Act 2013 (“CA”). The offence carries a prescribed penalty of 7 years’ imprisonment.
  2. Prosecution is seeking a conviction and custodial penalty with a starting time of 3 years’ imprisonment. However, Defence counsel is after a non-custodial term requesting either a supervision or suspended term. Probation recommends a conviction and a 12 months’ probation term.

The offending

  1. According to the Summary of Facts (“SOF”) you accepted; firstly, when you were self - represented and again when you instructed counsel to act; on 29 March 2021, the victim attended school. As is the usual routine, the school day started with the assembly. After the assembly at about 9am, the victim went to the school toilet before attending her first class.
  2. Whilst the victim was in the toilet, you called out from outside if she was alone in there to which she replied “yes” she was. At the time, the victim was facing the wall with her back towards the toilet entry. Unbeknown to her, you had entered the toilet and she was shocked when you came from behind, hugged her and touched her breasts saying “koekiki ou faakisia oe”.
  3. The victim immediately walked away crying towards her classroom. The teacher noticed her distress and asked if she was okay and if something had happened. So she confided in her. Soon after the teacher accompanied the victim to the principal’s office where the matter was reported. You were summoned where you confessed to what had happened and also apologised for your conduct. On 13 April 2021, you were apprehended and charged with this offence.
  4. However, the Pre-sentence report tells a different version of what had occurred claiming that you had hugged the victim from behind and in the process accidentally touched her breasts. I had questioned you about this as it differed from the victim’s recount of events reflected in the SOF and you informed that the victim’s version was the correct one. The fact you agreed twice to the SOF further substantiates this.

Accused

  1. According to the Pre-sentence report, you were 51 years old at the time of the offence. You are married with children and hold the paramount chiefly title of Masoe from Asau. You are a church leader who actively participates in church activities including being a failauga and Sunday school teacher. Testimonials submitted on your behalf, further confirm that you are well respected in your village and active in all facets of communal life. You are highly reputable and have not transgressed any of the village rules/tapu. You are a first offender with an unblemished record.
  2. Fogavaa, you are a highly educated man having graduated from the National University of Samoa with a degree in teaching in the secondary level. Thereafter you returned to serve in your village of Asau where you took up a teaching post at Asau College from 1998. You have been a teacher there for 24 years. At the start of 2021, you were appointed as a deputy principal. Less than two months after that promotion, you were charged with this offence.

Victim

  1. The victim was 15 years old at the time of the offence and a student at Asau College in which you were at all material times, the vice principal, a teacher and educator. You are related to the victim. After this incident she moved to NZ to be with her adopted parents.
  2. The natural father of the victim had previously addressed the court with J Kerslake presiding where he informed there was reconciliation and his family forgave you Fogavaa. This is further confirmed in a letter dated 26/10/21, where he again sought mercy. In his words” e ui i lo’u afafine ua aafia i le ua taua ae ua ou maua le loto faamagalo aua e le po pea se nuu e togo pea malama...e toe faamanatu atu ua faatoese foi le uso ma toe teuteu mea uma ua folau ai i lagi ma ua sologa lelei le va nofo ai”.

Aggravating features of the offending

  1. There are a number of aggravating features. First, the gross breach and abuse of a position of trust (s7 (1)(f) Sentencing Act 2016). Fogavaa, you were firstly a teacher/educator and secondly a relative of the victim. As an educator, you must always remember that at all times in performing your duties, students are in your care. In other words, your act in loco parentis meaning you assume the legal responsibility of being a parent to the students attending school.
  2. You are not a stranger to the victim but a relative. Again this is another breach of trust. The fact that you also hold the senior position of a deputy principal further elevates that duty. The breach of trust in this case is significant. Section 8 of the Sentencing Act directs the Court in cases involving violence against persons under 18 years to consider, the magnitude of the breach of the relationship of trust between the victim and the accused. This is a case of indecent sexual conduct by an educator of senior position towards a minor teenage student attending school. The fact the offence took place within the confines of the school environment where the victim should have had a sense of safety and protection, is aggravating.
  3. The age of the victim, is another aggravating factor. She was only 15 and you were 51 at the time of the offence. The Sentencing Act at section 7(1)(g) reinforces as an aggravating factor, the vulnerability of a victim because of his /her age. The age of the victim was a well-known fact to you Fogavaa being a deputy principal and relative. The age disparity of over 36 years between you and the victim is also an aggravating factor as it suggests that you were of seniority and should therefore be making wise judgment calls. Unfortunately, this was not so.
  4. The vulnerability of the victim as provided for under s7(1)(g) Sentencing Act is another factor. The victim was clearly left in a very vulnerable and frightening position when you sought her out in the toilet and did what you did Fogavaa. She was shocked, frightened, hurt, distressed, confused and traumatised.
  5. The psychological and emotional harm on the victim is taken into account as an aggravating feature. Just because the act involved touching her breasts does not make the offence any less aggravating. The victim was traumatised by this unwanted experience. The fact she walked away means she thwarted your advances and was anxious to get to safety.
  6. The high degree of premeditation in the commission of the offence is an aggravating feature. The school assembly had just finished and students dispersed for their first class. You must have seen the victim heading to the toilet because you knew she was in there. You sought after her, called out her name and even asked if she was in there alone. When she confirmed she was, you went after her like a predator and did what you did. Your actions were opportunistic.
  7. There was sexual predatorial connotation in your conduct as evident in the words you uttered whilst touching her breasts “koekiki ou faakisia oe”. This aggravates your offence.

Mitigating Factors

  1. There are a number of mitigating factors in your favour. You pleaded guilty which has save the court time and resources and an indication of your willingness to accept responsibility. An ifoga was performed to the victim’s family coupled with a monetary gift. A second ifoga was also conducted by matai of your family. Both ifoga and apologies were duly accepted. The two families have reconciled their differences with the victim’s one seeking mercy.
  2. You apologized to the school for tainting its reputation and abusing its trust. I take this into account bearing in mind that section 9(c) Sentencing Act 2016, allows the Court to take into account in sentencing, the response of the defendant or his family to the offending. You have also apologised in Court. I accept you are genuinely remorseful.
  3. You are of good character and your unblemished record as reflected in testimonials submitted on your behalf from your faifeau, sui o le nuu, Asau college principal and your wife are all taken into account. I accept the offence was out of character. You spent your entire life in your village rendering service to your family, village, school, church. So you are a contributing member of society.
  4. You were penalised by your village fono of Asau. This was confirmed by the sui o le nuu although details of what the sala entailed is unspecified. But you told the court in Tuasivi on 7/09/21 that you paid $1000 for the village penalty. This is a mitigating pursuant to s8 of the Village Fono Act 1990 which provides;
  5. I take into account your personal circumstances. You have a wife and children who have undoubtedly suffered the repercussions of your actions and consequently the results of your sentence I will be imposing today. They too have had to carry the burden of the public stigma of your conduct.
  6. You completed the rehabilitation programme with Samoa Victim Support group and a positive report from them is on file.

Discussion

Duty of teachers/Educators

  1. There is an utmost important duty on every teacher male or female to ensure that children or students in their care and custody are protected at all times and taught in a safe learning environment. Parents send their children to school for one purpose only and that is to learn and be educated so they may prosper in the future.
  2. The Teachers Act 2016 commenced on 18 January 2019 and was enacted with the purpose of regulating amongst other things the professional standards of all teachers in Samoa. It defines in section 2 a “serious offence” as meaning an offence, committed in Samoa or another country, which carries a penalty of a fine of at least 100 penalty units or of imprisonment of at least five (5) years, and includes a sexual offence involving a child as the victim irrespective of the level of penalty.
  3. “Sexual offence” is defined as meaning a sexual offence involving a child as the victim under the Crimes Act 2013 or other enactment, and includes a sexual offence involving a child as the victim committed in another country. A child is defined as a person under the age of 18.
  4. This legislation applies to you as at the time of the offence you held a certificate of registration as a teacher. The offence here carries a penalty of 7 years’ imprisonment so by definition pursuant to s2 of the Teachers Act, it is a serious offence.
  5. It is noted, that misbehavior of the kind amounting to misconduct breaching the code of ethics of a profession is subject to procedural investigation as governed by Teachers Act[1] and the Public Service Act 2004. Another legislation that applies to you is the Education Act 2009. Section 22 of the Education Act deals with the conduct of the principal, management and administrations staff. It provides:
  6. Fogavaa you were part of the school management being a deputy principal. So s22 above applies to you meaning you have a mandatory duty to ensure the purposes set out in (a) to (c) are effectively implemented and achieved. Unfortunately, you failed dismally to observe these crucial statutory principles when you committed this offence.
  7. At the time of the offence, the victim was only 15 years old. By definition she is an infant and a child being under the age of 18 pursuant to s2 of the Infants Ordinance 1961 and Teachers Act. As a child, once she leaves the comfort of her home for school, she is placed under the care and custody of educators like yourself who then become in loco parentis. Meaning you are entrusted by her parents whilst at school to take responsibility of her and keep her safe. This applies to every teacher / educator in Samoa. This is global phenomena, and Courts all over the world, have recognized that schools, administrators and teachers, given their in loco parentis status, must supervise and protect students from foreseeable harm to both their physical and emotional well-being.[2] This should be jealously guarded.
  8. You have a duty to ensure mutual respect is fostered in the school environment. Respect is earned not acquired. By mutual it means it is a two-way street, not one way. If a teacher treats a child/student with respect, then the same treatment is expected. It is not necessary for me to give you a rundown of what it means by respect as we practice it daily. We live, walk, talk and breathe it. The value faaaloalo is deeply ingrained in us as a people; so much so that it has become a normative blueprint of our society.
  9. By respect then, it means that you must appreciate the fact that a student’s dignity and autonomy (whether male or female) is safeguarded at all times. This means you cannot at any time whatsoever cross that boundary by embarking on any type of conduct that would harm and lower a student’s autonomy and dignity. This include inter alia conduct that are inappropriate, harassing and predatorial advances, unwanted touching and indecent acts and sexual abuse towards a student.
  10. So what I mean by this is educators, such as yourself, is inextricably linked with others in similar position to the maintenance of the integrity of the school system. As a teacher /educator, you occupy a position of trust and confidence. In other words, you are a fiduciary and stand in a special relationship of trust to the victim as a student in your in loco parentis role or as her parent. Once a teacher/educator steps outside of that boundary like you did here, you have breached that position of trust.
  11. The word fiduciary which is an equitable principle, “derives from the Latin word “fiducia” the primary meaning of which is trust. Important secondary meanings are confidence and reliance.”[3] The relationship between a parent and a child has been declared as having the hallmarks of a fiduciary in NZ, Canada and other common law jurisdictions.[4] A review of case law shows that Canada has a wider approach to fiduciary duties and I intend to adopt the Canadian approach though this is a criminal matter. In the Canadian case of Brooks v British Columbia,[5] it was explained that the fiduciary relationship between a parent and child arises from the vulnerability of the child and the power and authority of the parent.
  12. In the Canadian Supreme Court case of M (K) v M (H),[6] 33 an adult daughter sued her father for sexual abuse he inflicted on her when she was a child. The plaintiff’s claims for assault and breaches of fiduciary duty were upheld by the Supreme Court. La Forest J wrote the principal judgment and he stated:
  13. As stated above, the fiduciary relationship arises from the position of trust, confidence and reliance between you as loco parentis and the victim as a child under your care. Parents send their children to school to learn. Not so those in loco parentis like yourself, can prey on them when their sexual desire overcome good sense. No child or student should ever have to be exposed to the type of conduct you exhibited. Parents must be able to trust that their young teenage daughters are safe when they leave the comfort of their homes to attend school. Not so they could become your plaything or be subjected to indecent acts.

Convention on the Rights of the Child

  1. I bear in mind the United Nations Convention on the Rights of the Child ("CRC") which is an international human rights instrument that sets out the basic rights of children and the obligation of signatory governments. Samoa ratified the CRC on the 29 November 1994 and we are obligated to apply it to our domestic laws and court decisions.[7]
  2. As recognized, Samoa does not pay lip service to its obligations under the CRC.[8] In Leituala v Mauga[9] Vaai J remarked,
  3. There are numerous court decisions where our courts recognize the importance of heeding our obligations having ratified the CRC. Nelson J in P v Vailopa[10] had marshalled Court of Appeal and Supreme case authorities where CRC was applied.[11]
  4. His Honour Nelson J is well known for championing the protection of children in domestic laws and under the CRC and I refer here to P v Faiga[12] (one of his many decisions) where he succinctly described CRC as follows:
  5. In another case of P v Amate[13] his Honour Nelson J stated:
  6. In AG v Kum[14], the Court of Appeal in addressing the CRC aptly remarked:
  7. The Court of Appeal further observed:
  8. These basic principles set out in the preamble of the convention, of safety, happiness love and understanding equally apply in the school setting given the in loco parentis role educators / teachers play in the life of a child. This is an example of a case that is within the scope of the CRC in accordance with the Court of Appeal’s observations in AG v Maumasi.[15]

Conduct and impact

  1. Your conduct here was significantly premeditated. You saw the victim going towards the toilet after the school assembly and you went after her. You called out to her if she was alone. Unwary of your evil plot, she answered YES and you immediately entered the toilet without her knowledge and went on to touch her breasts. The touching was not just fleeting rather it was accompanied by your uttering words “koekiki ou faakisia oe”. I infer from your actions and words uttered you has sought after the victim for sexual gratification.
  2. You were an opportunist who took advantage of the victim’s vulnerability to prey on her especially being alone and isolated in the toilet. Your devious thoughts completely clouded your good judgment. Not once did you think of the consequences nor did you place any importance on your duties as an educator to the victim as a learner. That all went out the window the moment you lusted after her.
  3. A moment of weakness or inadvertence? I doubt it. The victim was devastated, distressed, shocked, embarrassed and hurt. No student or a daughter of Samoa should be exposed to this type of unacceptable conduct exerted by those in authority who should be foremost in their protection. Teachers and educators should zealously guard the safety and needs of students in their care and custody ahead of their own.
  4. For a man of your caliber it is quite disappointing to see you standing before this court. You worked hard to get to where you are starting from scratch; more than 20 years of teaching is now reduced to nothing. Those close to you never expected this and it shows the high regard they have of you.
  5. You informed you have been terminated bringing an end to a lucrative teaching career. This is of course a natural consequence of your actions going towards a breach of professional ethics under the Teachers Act.[16] I place no weight on it suffice to say, as a vice principal, you should have been foremost in conforming to appropriate standard of ethical practice and in promoting reasonable efforts to protect students from harm.

Purpose and Principles of Sentence

  1. The sentence passed takes into account the sentencing principles under s 9 of the Sentencing Act including holding you accountable for your actions, promoting in you a sense of responsibility, providing for the interest of the victim, deterring similar offending of this nature and conveying society’s condemnation and abhorrence of your criminal conduct.
  2. This Court have a duty to send out a strong deterring message, that sexual abuse and indecent offences of this nature by a teacher/ educator on a student in his/her care as loco parentis will not be condoned. If it happens then it will be met with a stern sentence of imprisonment sufficient to mark society's denunciation of such conduct. It must be reemphasized that it is incumbent on all teachers/educators to safeguard the wellbeing of all students from potential harm.
  3. This court will also send out a sentence that marks the protection of our daughters in the hands of teachers / educators. This Court does not take lightly the trust that parents and families place in teachers / educators to protect their most precious loved ones when they are at school.

Recommendation for sentence

  1. Both prosecution and your counsel have referred me to case authorities to substantiate the arguments put forth. I do not propose to traverse these in detail or conduct a comprehensive comparative analysis suffice to say those cases are distinguished in that it did arise in a teacher - student relationship. But I am guided by the types of penalties imposed and in this regard, P v Laufiso Vaioalii[17] is a useful guideline.
  2. For the reasons traversed in this sentencing ruling, I see your offending differently from the case of P v Petelo Smaila[18] who was the vice principal of Paul VI College and was engaged in similar conduct. The circumstances of his offending are distinguished.
  3. The sentence I will be imposing is one of custodial term. I have been indicating this to you from the start. I have also been deferring sentence so you may spend a bit more time with your family given the impact of COVID – 19 and related State of Emergency Orders.
  4. I will take a starting time of 3 years or 36 months as appropriate. From this figure I make the following deductions:
  5. The total sum for deductions for mitigating factors is 21 months thereby leaving a balance of 15 months.

Penalty

  1. Fogavaa you are convicted and sentenced to 15 months’ imprisonment.
  2. An order permanently suppressing or prohibiting the publication of the name and details of the victim is also issued. The suppression order does not extend to Fogavaa, as defendant.

JUDGE ALALATOA ROSELLA VIANE PAPALII

[1] See section 33
[2] Blackstone, W, Commentaries on the law of England 441 (1765)
[3] Estate Realties Ltd v Wignall [1991] 3 NZLR 482 (HC) at 492 per Tipping J.
[4] See Andrew Butler (ed) Equity and Trusts in New Zealand (2nd ed, Thomson Reuters, Wellington, 2009) at [17.3.13].
[5] Brooks v British Columbia 2000 BCSC 735 [2000] BCJ 909 at [108] – [109]
[6]M (K) v M (H) [1992] 3 SCR 6.
[7] AG v Maumasi [1999] WSCA 1
[8] See P v Faiga [2008] WSSC 96
[9] Leituala v Mauga [2004] WSSC 9
[10] P v Vailopa [2009] WSSC 69
[11] AG v Maumasi above note 7; AG v Kum [WSCA] 6; Leituala v Mauga [2004] WSSC 9; Wagner v Radke [1997] WSSC 6. Also see P v JI [2018] WSSC 50; Samoa Victim Support Group v Inoke [2013] WSDC 4; Ulugia v AG [2010] WSCA 15
[12] Above note 8
[13] P v Amate [2011] WSSC 148
[14] Above note 7
[15] Above note 1.
[16] See sections 23, 28 and 33.
[17] P v Laufiso Vaioalii (Unreported sentencing ruling of Tuala-Warren, J delivered on 27 September 2017).
[18] P v Petelo Simaila [2021] WSDC 1

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