Supreme Court of Samoa
Police v Tinifu [2012] WSSC 55

Case name:   Police v Tinifu
Citation: [2012] WSSC 55
Decision date: 07 May 2012
Parties: Police v Faimalo Tinifu
Hearing date(s): 
File number(s): 
Jurisdiction: Criminal
Place of delivery: Mulinuu
Judge(s): Nelson J
On appeal from:
Order:
Representation: 
L Taimalelagi for prosecution
Defendant unrepresented
Catchwords: 
Words and phrases:
Legislation cited: 
Crimes Ordinance 1961
Cases cited:  
Police v Obrien [2011]WSSC 17
Summary of decision:

               

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

FAIMALO TINIFU
Defendant

Counsel:  Ms L Taimalelagi for prosecution
Defendant unrepresented  
Sentence:  07 May 2012

SENTENCE

The victim in this case is 3 years old. She was 2 years of age at the time of this offending.  And was still being breastfed by her mother.  In the early morning hours of Wednesday 29 February 2012 she was asleep in bed with her mother at their house.  Next to the bed was a window covered only by screen wire.  She was unfortunately sleeping on the window side of the bed.  This enabled the defendant who was returning home drunk from partying with some friends to tear the screen wire, reach inside and lift out the victim.  He carried her off into the night to an empty house inland.  The girls mother awoke during the night, turned to check on her child to find no one there, pillows on the floor and the screen wire torn.  Whereupon a frantic search by the family and neighbours ensued.  
This must be every mothers nightmare.  To awake from sleep and find your 2 year old child gone with no trace as to what happened.  Words would inadequately capture what must have been going through the mind of this mother.  
The defendant is a single 19 year old male of the same village as the victim.  He dropped out of school and stayed home and assisted the family by working the plantation.  No one of his family attended his probation office interview which tends to indicate that the family have wiped their hands clean of him.  And demonstrates that they care little for his welfare.  Especially since they have had to pay a substantial fine to the village for the defendants actions in this matter.  In questioning this defendant for the purposes of his mitigation plea he appears to my untrained eye to be someone of limited understanding and low intellectual capacity.  His action in this matter in abducting a 2 year old girl indicates he also has psychological issues.  It is a matter of some concern because if these are not addressed, at the end of his jail term the cell door will open.  And he will return back to the community.  I doubt that he will return as a rehabilitated sex offender since no programs exist to address sexual offending at Tafaigata Prison.  
I am not certain which is the greater tragedy for this defendant.  What he tried to do to the 2 year old victim or his being cast into the wilderness from which one day in the not too distant future he will return to your doorstep and to mine.  It seems well beyond time that sexual offending in this country is tackled head on and programs and counseling made compulsory for offenders like this defendant.  While he is still young and capable of being reformed.  
The defendant told the probation office that his “moetolo” action was aimed not at the 2 year old but at a 15 year old of the same household.  But even someone with a low intelligence quotient would know the difference between a 2 year old child and a 15 year old.  I reject entirely that explanation by the defendant.  It seems to me more likely the defendant did not go through with his sexual intentions because he lacked the necessary criminal fortitude.  Which shows he is not beyond redemption and his ways and impulses can possibly be rehabilitated.  
The police summary of facts which the defendant admits says he did not sexually molest or assault the 2 year old girl though clearly that was his intent.  And that as he tried to return the girl to her family, the barking of neighbourhood dogs caused him to abandon her beside the village swimming pool.  Where she was found by adjoining families who returned her safely to her house the next morning.  
The defendant has pleaded guilty to the charge of abducting a female under the age of 16 years with the intent to have sexual intercourse with her.  A charge carrying a 7 year maximum penalty pursuant to section 83(b) or the Crimes Ordinance 1961.  Child abductions of this nature thankfully do not often come before the courts.  But they have occurred see Police v Obrien [2011] WSSC 17 where the abduction of a 5 year old female by a 17 year old boy resulted in an imprisonment penalty of 10 months followed by 12 months probation.  I agree with the comments of the learned Chief Justice in that case when he said that the need to protect young girls and the need for a deterrence sentence takes precedence over all other considerations.  There is also the requirement to denounce the defendants conduct to him and to the public at large as contrary to community standards of decency and morality and to emphasise its unacceptability.  Against that must be balanced the fact that the offender is a young person with possible mental issues.  
This is a case involving the abduction of a sleeping 2 year old from inside her house from her bed beside her mother.  It occurred late at night when everyone of the family was asleep.  It involved a young vulnerable victim and involved you taking her to a place where you had her completely at your mercy.  An appropriate start point for sentencing is 5 years in prison.  From that I will deduct one-third for your guilty plea which has saved the courts time and resources.  That leaves a balance of 40 months in prison.  I deduct a 12 months period to recognize that you are a first offender, that leaves a balance of 28 months.  In recognition of your youthful age I deduct from that period 4 months leaving a balance of 24 months or two years.  For this matter Faimalo you will be convicted and sentenced to 2 years in prison.  There will issue a permanent suppression order prohibiting publication of the details of the victim in this matter including her village of residence.  

JUSTICE NELSON