Police v Tiai [2007] WSSC 86 (26 November 2007)

IN THE SUPREME COURT OF SAMOA
HELD IN APIA

BETWEEN:

POLICE
Prosecution

AND:

SIMATI MOE TIAI
male of Lepea, Malua, Papa Puleia & Salailua.
Accused

Editor's note: Sentence by Sapolu CJ

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

Sentence: 26 November 2007

SENTENCE

The charges

The accused appears from sentence on one count of indecency between a man and a boy under 16 years pursuant to s.58C of the Crimes Ordinance 1961 which carries a maximum penalty of seven years imprisonment and one count of attempting to commit sodomy pursuant to s.58G of the Ordinance which carries a maximum penalty of five years imprisonment. The accused initially pleaded not guilty but after the dates on which the alleged offences had been committed were amended, the accused entered a guilty plea.

The offending

As it appears from the prosecution’s summary of facts which was confirmed by the accused, the accused who is a 50 year old male and the victim who is a 14 year old boy were at the time the present offences were committed living together in the same household in a village near Apia.

On a date between 01 November 2005 and 16 January 2006 around 11pm at night, the victim went to the toilet attached to the rear end of the house where he, the accused, and other members of the victim’s family were living. The accused at that time was having a shower at the tap located behind the house. When the victim came out of the toilet, the accused was drying up and hanging his clothes on the wash line behind the toilet. The victim made his way back to the house but returned to where the accused was when the accused called out to him to come over.

When the victim went over and asked the accused what he wanted, the accused opened his towel and showed his penis as he walked towards the victim. The victim retreated but the accused grabbed his arm and pulled him towards the back of the house. The accused pushed the victim on the ground causing him to fall on his knees. The accused then removed his towel and pulled up the victim’s lavalava as he placed his penis on the victim’s mouth. The victim tried to push him away as he stood up but the accused wrapped his arms around the victim’s stomach and pulled the victim towards him. As the victim stood with his back turned towards the accused, the latter placed his penis on his buttocks. At that time the victim broke away by pushing off the accused and then ran inside the house.

The accused

The accused had a low level of education. He is employed as a night security. There is no mention whether he has a wife or had one before. A testimonial from his supervisor shows that he is a committed and loyal employee.

As the pre-sentence report shows, the accused was raised by his maternal grandparents while his parents travelled overseas. At the age of 10, the accused lost both his grandparents.

The accused told the probation service that he had a hard upbringing and lonely and disturbing childhood. He said that after he lost his grandparents he turned to other family members for comfort. That was not to be. He said he was sexually abused by family members up to the age of 18 and he attempted to take his life on a number of occasions. I should mention here that there have already been one or two cases of sodomy coming before this Court where the accused said that he had been sexually abused by male adults when he was a youth. The present accused has had similar experience as a youth.

The accused has three previous convictions two of which were for minor non-sexual offences and the last and third which was for carnal knowledge in 1991. Because of the age of that previous conviction in 1991, I will not take it into account as an aggravating factor.

The victim

The victim is a student attending school. At the time of this offence, the accused was staying at the family of the victim because they are related to one another. Since this incident, the accused has been banned from the victim’s family. The accused’s mother would not like to see the accused again.

As a consequence of this incident, the victim when doing school work at night would always have flash backs of what happened to him when the family clock strikes 11pm and that affects his concentration on his schoolwork. The victim has also been unable to concentrate properly on his school work as he cannot comprehend how such an appalling thing could happen to him. When the accused initially pleaded not guilty and this matter was going to go to trial, the accused felt depressed about what had happened to him and he does not want to see the accused again. So the victim has been psychologically affected even though he did not suffer any physical injuries.

Aggravating features

The aggravating features in this case are: (a) the impact of the offending on the victim, (b) the age difference of 36 years between the accused and the victim, (c) the abuse by the accused of the victim’s trust in him as an adult member of his family, and (d) the obvious absence of consent from the victim.

Mitigating features

A mitigating feature of this case is the accused’s guilty plea though it was late.

The decision

Even though the accused appears for sentence on two separate charges, they are part and parcel of one incident. The gravity of the offending in this case is not as bad as the offending in similar cases that have come before the Courts previously even though the accused’s behaviour was diagnosing. Having regard to all the circumstances including the aggravating and mitigating circumstances, the accused is convicted and sentenced to 18 months imprisonment on each of the two charges against him. The sentences to be concurrent.

CHIEF JUSTICE

Solicitors
Attorney-General’s Office, Apia for prosecution