IN THE SUPREME COURT OF SAMOA
Police v Tapusalaia [2014] WSSC 190

Case name: 	Police v Tapusalaia	
		
Citation: 	[2014] WSSC 190	
		
Decision date: 	11 November 2014	
		
Parties: 	POLICE (Prosecution)
SHALOM TAPUSALAIA also known as TALIFA PUPI male of Siumu and Fusi Safata. (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:	For this offence you will be convicted and sentenced to 6 months imprisonment.  Remand in custody time to be deducted from that.	
		
Representation: 	O Tagaloa and G Nelson for prosecution
R Schuster for defendant	
		
Catchwords: 	-	
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:
		
POLICE
Prosecution

AND:

	SHALOM TAPUSALAIA also known as TALIFA PUPI male of Siumu and Fusi Safata.
Defendant

Counsel:	O Tagaloa and G Nelson for prosecution
R Schuster for defendant

Sentence:	11 November 2014

SENTENCE
1.	The defendant appears for sentence after pleading guilty to a charge that on 29 March this year, he had sexual connection with the complainant, a female under 16 years of age.  The defendant is a 21 year old male of Siumu lives at home and renders the usual family chores a young Samoan male does.  The complainant was at the time of this offending 15 years of age and attending college.  There will issue the usual suppression order in respect of publication of the details of the complainant.
2.	The police summary of facts indicates that on the date in question, about 1:00 o’clock in the afternoon both parties were at the complainant’s college compound watching a rugby match.  The defendant saw the complainant and sent a friend to tell her to meet him by the school toilet.  The complainant responded and found the defendant standing in front of the school toilet.  She followed him to the back of the school toilet.  When they got there the couple engaged in consensual sexual intercourse.  After that was completed the couple parted but not before they were seen by relatives of the complainant and other people.  Eventually word of what happened went around the school and found its way back to the complainants family who referred it to the police. 
3.	The defendant’s actions in this matter in my view are quite shameful.  He took this young girl to behind a toilet while a rugby match was on in a very public place.  The documents before me indicate that sex took place on the concrete.  According to the victim impact report the complainant says she was a virgin.   This was her first time and that it was her younger siblings who saw her and the defendant go to the back of the school toilets.  The documents also indicate there was some construction work in progress in the area near to where the incident occurred in full view of the workers.  
4.	The complainant was less than 16 years of age and therefore what the defendant did was against the law, even though the sexual intercourse was with her consent.  The defendant should understand that for this offence consent of an underage girl is no defence.  The reason why this law is there is to protect young girls from the predatory actions of older males.  The defendant in this case is 6 years older than the girl.  He should have known better and exercised much better judgment.  The law is also there to protect young girls from making misguided choices until they are old and mature enough to make good and informed decisions about their bodies.
5.	Shalom, you must understand that many young men have been sent to prison for this offence because the message the Court must continue to send out is if you are an older more experienced more worldly male and you have sex with an underage female you are likely to go to jail.
6.	According to the victim impact report this offending has impacted on the life of this young girl.  She has had to change schools because everyone knew about what had happened.  She no longer lives where she used to live and the victim impact report indicates she is still dealing with the trauma of this offending.
7.	This offence carries at law a 10 year maximum penalty.  But in the circumstances in my assessment a 12 month start point for sentence is appropriate.  On the plus side for you, you have a good background which is dealt with fully in the pre-sentence report.  There are many references filed in support of that report, including those from your faifeau from your faipule and from your pulenuu.  It is also in your favour you have pleaded guilty thus saving the Courts time and more importantly that has avoided the necessity of a trial and the young girl having to testify and relive this incident in a public arena.  Probation office have confirmed there has been an apology by your family to the complainants family.  This has been accepted but the victim impact report notes that there has been no personal apology by you to the victim.  The village council has imposed a substantial fine on your family which they have paid on your behalf; that is also in your favour Shalom and taken into account.  All these factors will reduce your term to half what it would normally be.  
8.	For this offence you will be convicted and sentenced to 6 months imprisonment.  Remand in custody time to be deducted from that.

JUSTICE NELSON