Police v Laititi [2014] WSSC 174 (29 September 2014)

IN THE SUPREME COURT OF SAMOA
Police v Laititi [2014] WSSC 174

Case name:	Police v Laititi
Citation:	[2014] WSSC 174
Decision date:	29 September 2014
Parties:	Police (Prosecution) and Tasilimatasi Laititi male of Toamua (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	On the charges of unlawful sexual connection you will be convicted and sentenced to 3½ years in prison each charge, terms to be served concurrent. In respect of the charges of your performing an indecent act on the two victims you are convicted and sentenced to 3 years, each charge, again terms to be served concurrent. Remand in custody time awaiting sentence is to be deducted from your 3½ year term.
Representation:	O Tagaloa for prosecution Defendant unrepresented
Catchwords:	Indecent act – sexual connection with child under 12 years –sexual abuse –sentencing bands –unlawful sexual connection
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE
Prosecution

AND:

TASILIMATASI LAITITI, male of Toamua.
Defendant

Counsel:
O Tagaloa for prosecution
Defendant unrepresented

Sentence: 29 September 2014

SENTENCE

3. There are 8 charges against the defendant. Some of them are duplications of each other, so I am only going to sentence him on the following charges: S2354/14 and S2351/14 which are charges of performing an indecent act on a child under 12 years and sexual connection with a child under 12 years, and also S2353/14 and S2352/14 which are similar charges against the second of the two victims involved in this matter. The rest of the charges are dismissed. A suppression order will also issue prohibiting publication of the details of both victims in this matter as they are young boys.
4. The police summary of facts which the defendant admitted this morning says he is a 32 year old male of Toamua married with one son and works at Yazaki Samoa. The first victim is an 8 year old male currently attending Primary School. The second victim is a 7 year old male who does not attend school but stays home. The victims are brothers and they live with their mother who is the complainant in this case. The defendant and complainant are cousins and the defendant is known to the young boys as an uncle.
5. On a date during the month of June this year the young boys were at their house playing in the front yard. The defendant approached them and invited them to come and eat some food a “falai” that he had cooked in his plantation. The boys agreed and went with the defendant to the banana plantation.
6. The defendant sat in the middle of the two victims who were seated on either side. It is not clear whether any food was actually there but the defendant told the first boy, the 8 year old to take off his shorts. When the boy took off his shorts the defendant opened his ie lavalava spread it on the ground and made him lie down on it. He then began to fondle the boy’s penis. He bent down and sucked his penis. Meanwhile the other boy was sitting beside them watching what was going on. The defendant moved away from the first boy and moved towards the second boy. He took off that boy’s shorts and did the same thing he sucked his penis while the first boy watched.
7. The defendant then lay on his back and told the two victims to bend down and suck his penis. He held the first boys head and pulled it towards his penis. When the penis was inside the boy’s mouth the boy began to cry. The boy stood up and ran away swearing at the defendant. The summary says he stood behind a tree and watched the defendant who then grabbed the second boy by the head and pulled his head down and forced him to suck his penis saying to him “seki a lau kama”. After a while he pulled the boy’s head away stood up put on his clothes and told the boy not to tell anyone. The two boys went home and immediately reported what had happened to a cousin and this eventually found its way to the ears of the mother who reported it to the police.
8. It is clear from all that the offending carried out by the defendant on these two very young boys is quite serious but unfortunately is not uncommon these days. The maximum penalty for the more serious of the two charges for doing this to a boy under 12 years is life in prison. In the current climate of increased offending involving sexual abuse on young children by older males imprisonment penalties are quite necessary and appropriate. As a deterrent to the defendant who already has a previous conviction albeit for a different offence and as a deterrent to all young males. The message must be clear: you do this on young boys, you will likely go to jail because society condemns this sort of behaviour.
9. As for an appropriate term of imprisonment, the prosecution have sought that the Court apply the sentencing bands used for charges of rape. Those sentencing bands of course involve a more serious offence and are of a higher nature. I do not agree that the sentencing bands for the more serious offence of rape, which carries the same maximum penalty, should apply. This sort of case is more varied in its forms and does not always involve penetration of some part of a person’s body.
10. The appropriate start point however must take into consideration all the relevant circumstances including the fact the defendant was an uncle to the young boys and would have been trusted by them. Plus the fact that he lured the young boys to the plantation with promises of food plus the fact that the boys were young and were placed in a vulnerable situation in a plantation far from their house and far from any adults. The offending I have no doubt was pre-planned by the defendant and he put these young boys in a position and at a place where they really could not resist what he was trying to do.
11. Considering all the relevant circumstances an appropriate start point for sentencing is 6 years in prison. You are entitled by law to certain deductions which I will now make on your behalf. Firstly for your guilty plea I deduct one-third of that term. The generosity of the deduction reflects the fact that young boys are involved and your guilty plea means they do not have to come to court and tell strangers about the sexual abuse you committed on them. It also reflects the fact that it saves the courts time and the valuable resources of the State. That reduces your penalty by 2 years to a period of 4 years imprisonment. You are not a first offender because you have a previous conviction so you get no deduction for that status. It has however been confirmed to me by the mother of the two boys that there has been a reconciliation in this matter and the appropriate apology has been made to them and they have accepted it. In recognition of that Tasi a further 6 months will be deducted from your sentence, leaving a period of 3 years and 6 months. No further deductions can be made in respect of your sentence.
12. On the charges of unlawful sexual connection you will be convicted and sentenced to 3½ years in prison each charge, terms to be served concurrent.
13. In respect of the charges of your performing an indecent act on the two victims you are convicted and sentenced to 3 years, each charge, again terms to be served concurrent. Remand in custody time awaiting sentence is to be deducted from your 3½ year term.

...........................
JUSTICE NELSON