Police v Tauese [2018] WSFVC 2 (17 January 2018)

THE FAMILY VIOLENCE COURT OF SAMOA
Police v Tauese [2018] WSFVC 2

Case name:	Police v Tauese
Citation:	[2018] WSFVC 2
Decision date:	17 January 2018
Parties:	POLICE V LEMISIO TAUESE, male of Faleula Uta
Hearing date(s):
File number(s):	D44/17; D668/17; D761/17
Jurisdiction:	Family Violence
Place of delivery:	Family Violence Court of Samoa, Mulinuu
Judge(s):	Judge Talasa Atoa Saaga
On appeal from:
Order:	In total you are to serve 10 months in prison. The time for which you have been held in custody from July 2017 to now to be deducted from the total term remaining. You are to undertake a full psychiatric assessment whilst you are serving your term. Probation and Prosecution are to consult and liaise with the family of the defendant so that they can assist with the full psychiatric assessment whilst he is serving his imprisonment term and in preparation for the release of the defendant back into the community. The Defendant to remain under supervision 12 months after serving his term.
Representation:	V Afoa for Prosecution Defendant Unrepresented
Catchwords:	Assault Indecent Act
Words and phrases:
Legislation cited:	CA 2013 s.123 CA 2013 s.60
Cases cited:	Police v Iloa (2016) WSSC 40 Police v Ah Kuoi (2016) WSDC 21
Summary of decision:

IN THE FAMILY VIOLENCE COURT OF SAMOA

HELD AT MULINU’U

BETWEEN:

POLICE
Informant

AND:

LEMISIO TAUESE, male of Faleula Uta
Defendant

Counsels: V Afoa for Prosecution
Defendant Unrepresented

Sentencing: 17 January 2018

SENTENCING DECISION OF JUDGEATOA-SAAGA

1. Lemisio Tauese you appear for sentencing on 1 charge of indecent assault on Fetoai Tauese, a female of Faleula Uta. She is your sister and was 19 years old at the time of the offending. The incident happened on the 24^th July 2016 at around 11pm.
2. You also appear for sentencing for a subsequent matter in which you have been charged with two counts of assault on MavaegaTauese on the 16^th July 2017 and on the 21^st July 2017 on Tusi Tauese which are in breach of Section 123 of the Crimes Act 2013 which carries a maximum penalty of 12 months imprisonment for each count. This incident happened when you were out on bail on the 12^th July 2017.
3. You entered a guilty plea to not only the charge of indecent assault but also the two counts of assault.
4. The indecent assault charge was reduced from the initial charge of sexual violation after the matter was heard before Supreme Court on 18^th January 2017. It was transferred to the District Court to be mentioned on 23^rd January 2017. For some unexplained reasons, it was only put on the mentions list on the 3^rd July 2017. On 12^th July 2017 you were granted bail. You committed the second offence when you were out on bail.
5. When you stood before the Court on 3^rd July 2017, it was clear to the Court that you were incomprehensible, displayed a lack of remorse and in need of a psychiatric assessment of your mental state. Unfortunately, Prosecution was not able to secure an appointment with the Mental Health Unit Doctors until December 2017 due to unavailability of a doctor. Currently there are only two doctors at the Mental Unit and both were overseas. Your mother also appeared in court and requested the court to continue to remand you in custody because she feared for her safety and that of your sisters. She also confirmed the need for you to seek help for your mental status. The Court was also concerned as to whether you had the requisite mental capacity to enter a plea to both charges.
6. Dr George Tuitama who was not able to provide an opinion as to whether you were fit to plead and required a collateral history before he could provide a “better opinion”. His opinion however was that your behavior was consistent with two possibilities. The first is of a deliberate behavior to convey the impression of mental illness or you actually have a mental disorder.
7. None of your family members appeared again in court to assist in the provision of further information to assist and complete a psychiatric assessment.
8. I cannot continue to hold you in custody. The Court has already adjourned this matter numerous times from July to December 2017 to allow you to undertake a psychiatric assessment.

The Offending

Indecent Assault

9. The Summary of Facts dated 16^th August 2017 was read out to you and you accepted that on 24^th July 2016, the victim who is your 19 year old sister had attended church services at Faleula Uta Church. Later when she went to the restroom, you knocked on the restroom door before forcing yourself in and proceeded to touch her breasts. The Victim escaped and screamed for help.

Assault

10. The Second Summary of Facts dated 22^nd November 2017 stipulates that:
    • (a) On 16^th July 2017 at 12.00pm at Faleula, the first Victim Mavaega Tauese who is a 50 year old female and who is also your mother had questioned you as to why you had touched the light bulb. You responded by hitting her on her jaw.
      • (b) Subsequently on the 21^st July 2017 at 2.30pm at Faleula, you also assaulted the second victim who is your sister Tusi Tauese a 29 year old female who is married with children when she instructed you to stay at home.
11. On the 21^st July 2017, you were taken to the Police Station where you were charged with two counts of assault against the two victims. When the matter was called, you pleaded guilty to the charges. You have been in custody since then.

The Accused

12. You are a 23 years old male of Faleula. You have no wife and no children.
13. You have also confirmed your prior conviction record. Your prior conviction record shows the following:
    • (a) On 27^th July 2012, you were convicted and sentenced for theft to nine months probation and to serve 60 hours of community work.
    • (b) On 24^th March 2015, you were convicted for possession of narcotics to eighteen (18) months imprisonment term.

The Victims

14. The Victims of both these offences are your Sisters and your elderly mother.

Aggravating features of your offending

Indecent Assault

15. The aggravating features of your offending are as follows:
    • (a) Your offending occurred within a domestic relationship. It was your own sister. This behavior is totally unacceptable.
    • (b) Your actions caused her to scream for help out of fear and undoubtedly disgust.
    • (c) There was an element of premeditation to your offending in that you deliberately pushed your way into the toilet and thereafter touched the victim’s breasts.
    • (d) The church toilet is a public place yet you committed this act on your sister with total disregard for your sister and the place in which you were committing this offence.

Assault

16. The aggravating features of your offending are as follows:
    • (a) The victims of the offences are your mother and older sister.
    • (b) You seem to display a lack of remorse and regard for the safety of both your mother and sister. You were previously charged for actions performed on your younger sister.
    • (c) Your mother had also appeared in court and pleaded for the Court for you to remain in custody for the safety of your family.
    • (d) She agreed that you needed help and an assessment of your mental status.

Mitigating features of your offending

17. There are no mitigating factors for your offending

Aggravating Factors as an Offender

18. You have two prior convictions in 2012 and 2015 for theft and possession of narcotics.

The Mitigating features as an Offender

19. Mitigating features as a Offenders are as follows:
    • (a) You pleaded guilty at the earliest opportunity.

Discussion

20. The commission of these offences shows your total disregard for your family. You should be protecting your mother and your sisters but instead they fear for their lives and their safety.
21. Your lack of remorse and accountability for your actions and the way in which you committed these offences raised the question as to whether you have a mental illness. Your mother appeared in Court and agreed that you needed help and supported your referral to psychiatric unit. After a lengthy delay to await the completion of this assessment, there is no confirmation that you actually have a mental disorder.

The Penalty

Indecent assault

22. The victim is your sister. The offence is touching her breast. Whilst touching her breast in view of previous cases is at the lower end of the scale, the act was performed on your sister.
23. Many of the indecent assault cases result in imprisonment terms especially if the victims are related to the perpetrator and particularly if they are young children involved. Even though your sister is not a young child, the special relationship between you two adds weight.
24. In Police v Iloa (2016) WSSC 40 which also involved the touching of a breast, the offender was given a non custodial sentence. The offender however was a first offender and he was not related to the victim.
25. Your action is totally inappropriate. She is your sister. Your mother has also pleaded to the court for you to be remanded in custody because it is only your sisters and her at home and she is scared that you may commit another similar offence. You are not a first offender.
26. In Police v Ah Kuoi (2016) WSDC 21, Judge Clarke prior to his elevation to the Supreme Court sentence started at 18 months. The starting point for this matter will be 9 months. There was a higher degree of violence in Police v Ah Kuoi (supra)
27. I will deduct 1 month for your guilty plea to the charge. I will also deduct 6 months from your sentence for the delay in putting this matter on the District Court list after it was transferred from the Supreme Court. You were held in custody whilst awaiting the putting back of this matter on the list.
28. You are hereby convicted to 2 months imprisonment.

Assault

29. The victims of the offences are your mother and sister.
30. You have no regard nor respect for your mother and your older sister. You have shown no remorse either.
31. You are hereby sentenced to 8 months for each count. Both counts to be served concurrently.

Total sentence

32. In total you are to serve 10 months in prison. The time for which you have been held in custody from July 2017 to now to be deducted from the total term remaining.
33. You are to undertake a full psychiatric assessment whilst you are serving your term.
34. Probation and Prosecution are to consult and liaise with the family of the defendant so that they can assist with the full psychiatric assessment whilst he is serving his imprisonment term and in preparation for the release of the defendant back into the community.
35. The Defendant to remain under supervision 12 months after serving his term.

JUDGE SAAGA