Police v Taeao [2014] WSSC 101 (22 September 2014)

IN THE SUPREME COURT OF SAMOA
Police v Taeao [2014] WSSC 101

Case name:	Police v Taeao
Citation:	[2014] WSSC 101
Decision date:	22 September 2014
Parties:	The Police (Prosecution) Fetufou Tupai Taeao (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Courthouse, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	Serve a total term of 3 years imprisonment
Representation:	O Tagaloa and Ms Tavita for prosecution F K Ainuu for defendant
Catchwords:	Indecent Assault – imprisonment term
Words and phrases:
Legislation cited:
Cases cited:	Police v Kome
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE
Prosecution

AND:

FETUFOU TUPAI TAEAO male of Safata.
Defendant

Counsel: O Tagaloa and Ms Tavita for prosecution
F K Ainuu for defendant

Sentence: 22 September 2014

SENTENCE

1. The defendant appears for sentence on two counts of indecent assault. One committed in 2005 on the complainant when she was 9 years of age and one in 2014 when she was 18 years of age. The summary of facts which the police have tendered states that the defendant is a 54 year old male of Safata married with eleven (11) children. The victim also of the same village is his niece because she is the daughter of his older brother.
2. The 2005 incident occurred between 31 March and 01 June when the victim was staying at Vaitele-uta visiting her auntys house. The defendant, his wife and children were also at the time staying at Vaitele-uta. One night while the victim was asleep inside her mosquito net with her grandmother the defendant approached and entered. He went to the victims side and touched her breasts. This caused the victim to wake up. The summary says she discovered at that time the defendant was on top of her. The victim tried to wake up her grandmother and this caused the defendant to leave their bed. The grandmother woke up and the victim told her the defendant had come to her bed. The grandmother questioned the defendant. He said he only came to cover the victim with a bed sheet “e alu atu e fa’a’afu”. The defendant has pleaded guilty to a charge that this was an indecent assault on the then 9 year old victim.
3. The second incident occurred on 16 March this year again at Safata where the victim was sleeping inside one of the family rooms with the defendants children. During the late hours of the night the defendant approached her bed removed her underpants and touched her private part and also her breasts. This woke up the young girl and she slapped away the defendants hands and told him off. The defendant then told the victim not to tell anyone about what he had done and left the room. Subsequently the victim met up with one of her auntys and shared with her aunty what the defendant had done. The matter was reported to the police resulting in the defendant pleading guilty to this incident in March this year being an indecent assault on the 18 year old victim.
4. There is no question an imprisonment term is required for this kind of offending. As stated by my brother Justice Vaai in Police v Kome [2008] WSSC 32 the sentence should convey to the defendant and other like-minded men that this sort of offending will not be tolerated by our society. Relevant considerations in this case as to penalty include the very young age of the complainant in 2005, the abuse of the defendants position in the family as he is the girls uncle and the fact he is more than 30 years older than her. It is also relevant that the place of the offence was in the family home where a young girl at 9 years and 18 years of age was entitled to feel protected and secure. From such violations especially from family members. The effect the offending has had on the complainant has been substantial and is fully detailed in the victim impact report filed. Where she talks about feeling sad and disappointed about what happened to her particularly because the defendant is her uncle.
5. I will deal firstly with the 2005 incident. The maximum term then was 7 years in prison under the old crimes legislation. Considering all the circumstances of your matter including your relationship to the young girl an appropriate start point for sentence is 4 years in prison. From that you are entitled to certain deductions as your counsel has correctly pointed out. For your guilty plea which has saved the necessity of a young girl reliving this experience and the courts time I will deduct one-quarter of sentence. That is a period of one (1) year leaves a balance of 3 years in prison. The pre-sentence report details your pervious good character and service to your aiga and the fact that you have a clean criminal record. It is supported by testimonies from your faifeau and also your pulenuu. For those matters I will deduct 6 months from your sentence leaves a balance of 2½ years in prison. The probation report also notes that a reconciliation has been implemented between you and your brother the girls father. It also notes this apology has been extended to the victim. In recognition of those factors I will deduct a further 6 months from your sentence leaves a balance of 2 years in prison.
6. In respect of the indecent assault in 2005 you will be convicted and sentenced to 2 years imprisonment.
7. In relation to the offence in 2014 the maximum for the offence is 5 years in prison. This represents gross misconduct by you on your still much younger niece of 18 years of age. Once again occurring in one of the families homes. However I would expect the impact on an 18 year old therefore a more mature victim would not be as devastating as it would have been on her when she was 9 years of age.
8. Considering all the circumstances of this indecent assault and making the appropriate deductions for factors in your favour namely, your guilty plea and again you are entitled to some deduction for your previous good record. You will be convicted in respect of this indecent assault and sentenced to 12 months in prison.
9. Because these two offences are 9 years apart it is appropriate they be made cumulative to each other. So for these two indecent assaults on your niece you will serve a total term of 3 years imprisonment.
10. Just for the record there will also issue a suppression order in respect of the details of the victim.

JUSTICE NELSON