Police v Tiasaga [2012] WSSC 104 (20 December 2012)

SUPREME COURT OF SAMOA

Police v Tiasaga [2013] WSSC 24

Case name: Police v Tiasaga

Citation: [2013] WSSC 24

Decision date: 20 December 2012
Parties:
POLICE and SAULELEI TIASAGA male of Ululoloa and Leualesi Leauvaa-uta.

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Nelson

On appeal from:

Order:
Representation:
Ms L Taimalelagi for prosecution
Mr D Clarke for defendant

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE

Prosecution

AND:

SAULELEI TIASAGA male of Ululoloa and Leualesi Leauvaa-uta.

Defendant

Counsel: Ms L Taimalelagi for prosecution

Mr D Clarke for defendant

Sentence: 20 December 2012

SENTENCE

The summary of facts which the defendant through his counsel accepts states that he is a 48 year old male of Ululoloa and Leauvaa-uta, married with 6 children and works on a farm at Aleisa. The victim is an 8 year old female also of the village of Aleisa. At the time of the offending she was a Year 3 student at the local Primary School. There will issue a suppression order prohibiting publication of the details of the young girl including her village and place of residence.

The summary goes on to state that the defendant and the victims parents work together on the farm at Aleisa where this incident took place. On Wednesday 25 January this year the victim was instructed to go feed sheep on the farm. After doing that she headed back to her house to take a bath. She showered and then went to the front porch of their two storey house and sat there singing songs. She was alone in the house at the time.

The defendant approached her pulled her by the hand and proceeded to remove her under garment. He then laid her on the floor face upwards and removed his pants. He used his hands to close her mouth so that she could not be heard crying out. The defendant moved on top of the victim and tried to insert his private part into her private part. The young girl kicked and tried to move away and resist but he had her pinned to the floor. The defendants action were interrupted by the arrival of the victims sister. Whereupon the defendant pulled up his pants and walked away.

The defendant was apprehended the same day taken to the Faleata Police Station where he was cautioned and interviewed and charged with one count of attempted rape. He initially pleaded not guilty to that charge but when it was called for hearing he vacated that plea and substituted it with a plea of guilty. He therefore appears for sentence today on the charge of attempted rape which carries a maximum penalty of 10 years in prison.

Considering the circumstances of this matter and particularly the tender age of the young girl there is no question an imprisonment penalty must be applied. To punish him for his actions. To denounce his conduct. To deter him from ever behaving like this again and to send a message to others who may be tempted to engage in such deviant behaviour. And to protect the young children of our society from such actions.

Sexual offending by mature males on young females is sadly prevalent in this country. This is not the first case of this kind and probably will not be the last. And it usually involves relatives or sometimes an acquaintance of the victim as is the case here.

The defendant told the probation office as recorded in his pre-sentence report that he had erred in judgment and that his emotions had gotten the better of him. He also expressed remorse for his offending and broke down when pressed about having two daughters of similar age to the victim. He conceded that what he did was unacceptable by our moral standards and that he would be angry if any one did the same sort of thing to his daughters. This shows that he had full knowledge of his wrong doing. But it also shows his remorse. None of these however excuse or justify the defendants behaviour.

He is some 40 years older than the young girl. He took advantage of her at a time when she was alone and vulnerable. The defendant would have been known to the victim. Because he is work colleagues with her parents. There is therefore likely to have been a certain degree of trust placed in him by the victim. Clearly he was allowed free access to the house of the victim and her family. Which hints at some kind of relationship between him and the victims parents. There has been clear abuse of that relationship. The facts also indicate that had the victims sister not come along it is entirely likely the attempted rape would have progressed further. Perhaps even to the state of full rape.

There is no under estimating the effect this sort of offending will have on an 8 year old. While the medical report shows no physical injury to the girl the psychological damage will probably only become apparent later in her life. Studies in this area shows sexual assaults on young victims invariably have long term consequences. This young girls victim impact report itself states that the victim some times dwells on the incident and is having difficulty overcoming what happened. The victim was saddened by the incident and screamed out to her parents for assistance. And she was frightened of the defendant who had closed her mouth to stifle her screams for help.

As stated the offence of attempted rape carries a 10 maximum penalty. Considering all the relevant circumstances an 8 year start point for sentence is appropriate. As your defence counsel has pointed out certain deductions however need to be made from that start point to reflect mitigating factors in your favour. Firstly the fact of your guilty plea which though made late and not at made at the first reasonable opportunity has avoided the necessity of a trial. And it is consistent with your expression of remorse. For that guilty plea I will deduct a period of 1 year from your start sentence. Leaving a balance of 7 years. For the fact that you are a first offender with a clean record and good background I will deduct a further 1 year from your sentence leaving a balance of 6 years. There are no other adjustments that need to be made to your sentence Saulelei.

For this offence of attempted rape you are convicted and sentenced to 6 years in prison. Any time spent in custody awaiting sentence is to be deducted from that period.

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JUSTICE NELSON