Police v Atagisio [2007] WSSC 60 (24 July 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

TUUGAMUSU ATAGISIO
male of Moamoa.
Accused

Counsel: L M Su’a for prosecution
Accused in person

Sentence: 24 July 2007

Sapolu CJ

SENTENCE

The charges

The accused appears for sentence on two counts of indecent assault each of which carries a maximum penalty of seven years imprisonment. Initially, the accused pleaded guilty to both counts and not guilty to a third count of indecent assault which has been withdrawn by the prosecution.

The offending

The accused is a 64 year old widower from Moamoa and Sataua. The victim is a 15 year old female. She is a step-granddaughter of the accused being a daughter of the accused’s stepdaughter.

As the summary of facts shows, the victim had been raised by the accused and her grandmother, the natural mother of the victim’s mother. When the victim’s grandmother passed away, the victim continued to live with the accused at Moamoa.

On 3 April 2005, two days after the victim’s grandmother was buried, the victim was asleep at night in her bedroom when she heard knocking on her door. Everyone of the family had gone to sleep. The victim unlocked and opened the door to find the accused there. The accused then entered the room, closed the door, took hold of the victim’s hand and pulled her towards the bed. The accused then laid the victim down and tried to kiss her but the victim refused. A noise was then heard from the kitchen and the accused stopped and left the victim’s bedroom.

On the following night, 4 April 2005, the victim was again asleep in her bedroom at night with the door locked when the accused opened the door with a spare key. The accused then woke up the victim and told her not to make any noise. He then tried to kiss the victim, took off her lavalava and panties, took off his own clothes, and lay on top of the victim. The accused then took off his penis and rubbed it against the victim’s vagina. He also caressed and fondled the victim’s breasts.

At the times these incidents occurred the victim was still living under the care of the accused.

During the plea in mitigation by the accused, he said that he had not been drinking alcohol for many years. Because of the emotional distress brought about by the death of his wife, he drank some beers and it was while he was drunk that he went to the room of the victim. This was the first time the accused went to victim’s bedroom which must have been 3 April 2005. However, the second time that the accused went to the victim’s bedroom he was not drunk.

The accused

The accused is 64 years old, his date of birth being 2 May 1943. As the pre-sentence report shows, the accused is a carpenter by profession who has done a lot for his church, which is the Catholic Church, through his carpentry skills. For the accused’s services to the Catholic Church, the late Cardinal Pio Taofinuu gave him land at Moamoa for his own use and that is the land on which the accused is currently staying. Because of his age, the accused is no longer fit for difficult carpentry work but he does small favours for his Church when asked by his priest.

The accused is now living alone with his 9 year old son whom he takes to school at Vaimoso everyday. He is particularly concerned about what will happen to his son if he goes to prison.

The accused and his family have preformed a traditional ifoga to the victim’s family at Safa’ato’a where the victim is now staying with her natural mother. The ifoga included a presentation of three large fine mats and $300 cash which was accepted by the family of the victim. He has also expressed remorse.

The accused is a first offender.

The victim

As mentioned earlier, the victim is 15 years old. She is a step-granddaughter of the accused. She had been raised by the accused and his late wife. At the time of these offences the accused’s wife had just been buried for two days and the victim was still staying with him.

The sentencing memorandum submitted by the prosecution shows that what the accused had done to the victim has changed the victim in the following ways:

(1) Even though the victim’s family have been pushing the victim to go back to school she does not want to. Before this incident the victim was always keen about going to school.

(2) The victim now does not want to go anywhere public including school.

Aggravating features

The breach of trust involved in this case, the psychological impact of the accused’s actions on the victim, and the age differences of 49 years between the accused and the victim are aggravating features.

Mitigating features

The accused’s plea of guilty, his expression of remorse, the fact that at the age of 64 years he is a first offender and the ifoga made by the accused and his family to the family of the victim are mitigating features.

The decision

In view of the maximum penalty of 7 years imprisonment and the aggravating features of this case, I have decided to take 4 years as the starting point for sentence. I will deduct a 1/3 discount for the accused’s plea of guilty at the earliest opportunity to the counts which he is appearing for sentence. That leaves 2 years and 8 months. I will deduct another 8 months for the other mitigating features including the ifoga and the fact that at age 64 the accused is a first offender. That leaves 2 years.

The accused is sentenced to 2 years imprisonment on each of the two counts applying the totality principle. Both sentences to be concurrent.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution