Police v Tanielu [2006] WSSC 46 (22 August 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

KONEFERENISI TANIELU
male of Puipa’a.
Accused

Counsel: A Lesā for prosecution
J Stowers for accused

Sentence: 22 August 2006

SENTENCE

The charge

The accused is charged under s.53 of the Crimes Ordinance 1961 with the offence of having sexual intercourse with a girl over the age of 12 years and under the age of 16 years which carries a maximum penalty of seven years imprisonment. To the charge the accused pleaded not guilty and the case proceeded to trial on 1 and 3 August 2006. The accused was found guilty as charged.

The offending

At the trial the accused elected not to give or call evidence. The evidence adduced by the prosecution shows that the accused and the victim, who are both from the village of Puipa’a, had a boyfriend-girlfriend relationship for about two years up to the time this offence was committed. They were both students at the time and they still are. During their relationship, the victim wrote love letters to the accused and the accused must have done the same to the victim.

On or before Saturday, 23 April 2005, they made a plan to meet in Apia on that day. They duly met in Apia as planned and the accused bought two small bottles of vodka and a bottle of sprite which they took to the park on the seaward side of the Kitano Tusitala Hotel and drank under a tree. That was about 11:00am in the morning. At about 1:00pm in the afternoon, they left in a taxi with what remained of their vodka and returned to their village of Puipa’a. Instead of going to their respective homes, they went to the engineering workshop where the accused works at Puipa’a. At the workshop, the accused continued drinking. When it was night time, they had sexual intercourse and slept in the workshop. They remained there the whole of the next day which was Sunday. On early Monday morning, the victim went home. When she arrived home, her mother told her to come to the police station as a sister of her father had contacted the police the previous day. The victim felt very embarrassed as it had become known that she and the accused had eloped. She said in evidence that what had happened is now past history and she wants to put it behind her. She also wants to forgive the accused and forget about this incident.

In the accused’s cautioned statement given to the police and which was produced in evidence, he admitted to the police that he had sexual intercourse with the victim on the day in question. He also told the police in his cautioned statement that he knew the victim was 15 years old at the time but he did not know it was a criminal offence to have consensual sexual intercourse with her.

The victim

The victim is now 16-17 years old but was 15½ years at the time of the present offence. She is a student and presently attending school at Year 12.

The accused

The accused, as it appears from the charge, was 23 years old at the time of the present offence. He is a first offender. He works as a fitter, welder and fabricator at an engineering and construction company. At the same time he attends the Polytechnic at the National University of Samoa for apprenticeship training in fitting and machining. He is currently in the fourth and final year of his apprenticeship training.

Testimonials for the accused were obtained by the probation service from the matai of the accused’s family, the accused’s employer, the National University of Samoa and the accused’s village pastor. They show the accused to be a good, able, hardworking, dependable and trustworthy person. In particular, the testimonial from the National University shows the accused to be a conscientious and responsible student who is one of the brightest in his class. The testimonial from the accused’s employer refers to the accused as a "unique person" who is a key and essential member of the company with a great deal of potential. The testimonial from the accused’s village pastor shows that the accused is a reliable member of his church, is a Sunday school teacher, and a qualified lay preacher in spite of his relatively young age. Thus the accused was a person of good character prior to the commission of the present offence.

The family of the accused have also performed a ifoga which was accepted by the family of the victim. This was confirmed by the victim’s mother who also prayed to the Court to pardon the accused.

Aggravating circumstances

I do not see any aggravating circumstances in this case for the purpose of sentencing and none was raised from the bar.

Mitigating circumstances

The first mitigating circumstance for the accused is that he and the victim were boyfriend and girlfriend and had been so for about two years before the present offence occurred. Both of them were students and still are. The age difference between them is about eight years which is not as great as compared to the age differences in some of the cases of having sexual intercourse with an under-aged girl that have come before the Courts. The victim was also 15½ years old at the time of this offence which was only six months short of the age of 16 years when sexual intercourse with her consent would have been lawful. I also believe what the accused had told the police in his cautioned statement that he knew that, at the relevant time, the victim was 15 years old but he did not know that it was a criminal offence to have consensual sexual intercourse with her.

Another mitigating circumstance is that the accused is a first offender. He is also a person of good character as it appears from the pre-sentence report and testimonials submitted by the probation service. He is also an able, hardworking and trustworthy person.

There is also the ifoga performed by the family of the accused and accepted by the family of the victim. In the circumstances of this case, I would also give some weight to what the victim told the Court that she wants to forgive the accused and forget about what happened as well as the plea by her mother for the accused to be pardoned.

The decision

The purpose of s.53 of the Crimes Ordinance 1961 is not only to protect young female members of society from sexual exploitation but also to protect them from themselves. In R v Taylor and Others [1977] 3 All ER 527 Lawton LJ in the English Court of Appeal pointed out that there is a wide spectrum of circumstances which give rise to the offence of having sexual intercourse with an under-aged girl. At one end of the spectrum is a youth (16 to 18 years) who had a virtuous friendship with a girl under the age of 16 which ended in them having sexual intercourse. At the other end of the spectrum is a man in a supervisory capacity, such as a schoolmaster, who sets out to seduce a girl under the age of 16. The appropriate sentences for the two types of offending would be very different. In the first type, a non-custodial sentence would be appropriate. In the second type, a custodial sentence of somewhere near two years would be appropriate. Lawton LJ also pointed out that in between the two ends of the spectrum are many degrees of guilt for which there are a wide variety of penalties. Of course Lawton LJ was delivering judgment in the context of English penal law. The maximum penalty for the offence of having sexual intercourse with a girl under the age of 16 was two years imprisonment under English law at the relevant time. The maximum penalty in Samoa of course is seven years imprisonment. With respect, I still find the guidelines stated by Lawton LJ in R v Taylor as providing a relevant and helpful approach to sentencing for the present type of offence bearing in mind the peculiar circumstances of Samoa.

The circumstances of this case do not come under either end of the spectrum for this type of offence as explained by Lawton LJ, but they are close to the case of a youth (16 to 18 years) who had a virtuous friendship with a girl under the age of 16 years which ended in sexual intercourse. Having regard to the other mitigating circumstances already referred to, I have come to the conclusion that a non-custodial sentence is appropriate in this case. The question is what form should that sentence take. The accused is clearly a person of good character as his testimonials and pre-sentence report show. What he needs is not rehabilitation but deterrence and a lesson that the type of unlawful conduct he committed can have serious consequences for him. However, the deterrence is not to be a custodial sentence for that will not be appropriate in this case. A fine would do.

The accused is convicted and fined $650. He is also warned not to commit this type of offence again for if he does, it is most likely that he will go to prison. So let this be a lesson he will never forget.

CHIEF JUSTICE