Police v Tupa'i [2007] WSSC 30 (4 May 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

PITA TUPA’i aka ALELI SEUALUGA UATI
male of Lepea.
Accused

Counsel: A Lesa for prosecution
Accused in person

Sentence: 4 May 2007

Sapolu, CJ

SENTENCE

The charges

The accused appears for sentence on three counts of having sexual intercourse with a girl between the age of 12 years and 16 years. To these counts the accused has pleaded guilty at the earliest opportunity.

The offending

The accused and the victim are both from the village of Lepea. According to the amended summary of facts which was admitted by the accused, between 31 October and 1 December 2006, the victim went over to where the accused was sleeping in his family’s house and woke him up. The victim then laid next to the accused and agreed to have sexual intercourse with him when he asked her. The accused then kissed the victim’s mouth and had sexual intercourse with her. The victim felt pain because that was her first experience of sexual intercourse. The accused and the victim again met on a separate occasion between 31 October 2006 and 18 December 2006 and had sexual intercourse. On the third occasion, the accused and the victim met on Sunday, 17 December 2006 and had sexual intercourse.

According to the pre-sentence report, the accused told the probation service that this offence took place on 17 December 2006 at around two o’clock in the morning when he was asleep at his family’s Samoan guest house and the victim came and woke him up. The victim asked him if he would like to have sexual intercourse with her. He agreed and then they had sexual intercourse. When they were both satisfied, the victim returned to her home. It is not entirely clear whether this was the first or the second or the third occasion the accused and the victim had sexual intercourse. The accused told the Court that he and the victim had only known each other for just less than a week before they had sexual intercourse.

The victim

The victim is 15 years old. She is still attending school. According to the pre-sentence report, the victim told the probation service that the accused did not force her to have sexual intercourse with her. They both agreed to have sexual intercourse. This matter has also been settled between the family of the victim and the family of the accused.

The accused

The accused is 16 years old. He had been attending school in New Zealand. He is now employed in his father’s bricklaying business. The accused told the Court that he intends to return to New Zealand to continue his education but has remained in Samoa until this case in finished.

The accused is a first offender. It appears from the pre-sentence report and a character reference from a Congregational Christian Church pastor of the accused’s village that the accused had been a person of good character prior to the commission of this offence.

Mitigating features

The accused’s plea of guilty to the charges against him at the earliest opportunity is an important mitigating factor. The fact that he is a first offender and was a person of good character prior to the commission of these offences is also a mitigating factor.

The victim was also the initiator of these offences. On the first occasion of sexual intercourse, she went late at night to the house of the accused’s family where the accused was sleeping woke him up and then laid next to him. There is no evidence that it was the accused who seduced the victim.

The accused is also a young offender. The age difference between him and the victim is only one year. This matter has also been settled between the two families.

Aggravating features

These are no aggravating factors in this case.

The decision

Having regard to the circumstances, particularly the mitigating factors, I am of the view that a non-custodial sentence would be appropriate in this case. I also take into account what the accused told the Court that he had been attending school in New Zealand and intends to return to New Zealand to continue his education.

In the circumstances, I have decided to impose a monetary fine. The accused is convicted of the charges against him and fined $600. I must add that now that the accused is aware of the seriousness of the acts that he committed, he must not commit this type of offence again for if he does, he will run the risk of going to prison.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution