Police v Filisi [2014] WSSC 192 (17 November 2014)

IN THE SUPREME COURT OF SAMOA
Police v Filisi [2014] WSSC 192

Case name:	Police v Filisi
Citation:	[2014] WSSC 192
Decision date:	17 November 2014
Parties:	POLICE (Prosecution) TUA FILISI male of Lalomanu and Apia. (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:
Representation:	L Sio and O Tagaloa for prosecution T Leavai for defendant
Catchwords:	indecent assault
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

TUA FILISI male of Lalomanu and Apia.
Defendant

Counsel: L Sio and O Tagaloa for prosecution
T Leavai for defendant
Sentence: 17 November 2014

SENTENCE

1. The defendant has pleaded guilty to 5 counts of indecent assault. The police summary of facts, which the defendant, through his counsel has accepted says the defendant is a 37 year old male of Lalomanu and Apia, married with children. There are 4 victims involved in this offending, 3 of them close relatives of the defendants then wife; the fourth victim was the defendants step-daughter. I will deal with each incident in turn involving each victim. There will also issue suppression orders in relation to the details of each of these victims.
2. Charge S136/13 is that in the month of November 2011 an incident occurred at Lalomanu. Dances were on and were attended by the victim and her cousins. When the dance finished the victim and her cousins went back and slept in their house, a house shared by the defendant and his then wife.
3. At around 3:00 to 4:00 a.m. in the early morning the defendant went to where the victim was sleeping and touched her knee. His touch continued to move upwards and he lifted her skirt. The defendant continued his touch to the victims vagina but the victim at that time turned on her side. The victim tried to pull up her sheet to cover herself but the defendant pulled it away. This caused the victim to open her eyes and ask him what he was doing. The defendant told her he came to ask her why she was sleeping under the window. That is the first count of indecent assault which the defendant has pleaded guilty to.
4. Charge S139/13 involves the same victim. This occurred in the month of March 2012, again at Lalomanu at the house shared by the victim the defendant and wife. On a day during this month the summary says the victim went to her room to change and have a rest. At that time the defendant entered the victims room and closed the door behind him. The defendant laid on top of the victim and hugged her, asked her to kiss him but she refused. Then began kissing her neck and when he heard a noise from the kitchen, he stopped got up and left. At the time of both these incidents the victim was 14 years of age. This is the second count of indecent assault the defendant has pleaded guilty to.
5. Charge S1401/12 involves a different victim and occurred during the month of December 2011, again at around 3:00/4:00 o’clock in the morning at the house at Lalomanu while the victim was sleeping with her cousins in the sitting room. The summary says the victim was surprised when she felt someone sitting beside her and touching her breasts. She saw it was the defendant. She took his hands off her breasts and told him to go and sleep with his wife. The victim turned to the other side and went back to sleep thinking the defendant had left. However, the victim felt the defendant caressing her leg and his hand moved up her leg and went inside her panty and touched her private part. She again turned around swore at the defendant and chased him away. The victim was then 16 years of age. This is the third count of indecent assault the defendant has pleaded guilty to.
6. Charge S1400/12 involves a different young girl. This occurred in the month of November 2011, this time at Vailima where the defendant and his wife were staying with their children. The victim also stayed at the house. Again during the night the victim turned on her side and she thought it was her cousin who was sleeping beside her. However she felt her leg touch someone bigger and taller. She opened her eyes and saw it was the defendant. She then felt the defendant touching her chest area her stomach and down to her private parts. The summary says the defendant fondled her genitals from outside her panty and when he tried to put his hand inside she moved away. The defendants actions were disturbed by his wife who called out for him to come and sleep with her on the bed and he did so. At this time the victim was 11 years of age. This is the fourth count of indecent assault the defendant has pleaded guilty to.
7. The fifth and final count is charge S1399/12 involving a different victim. This happened in November 2011 at the house at Vailima where this victim was also living with the defendant, his wife and her cousins. The victim in this case was the defendants step-daughter. The summary relates that on one night during this month the victim was sleeping with her cousins on the floor beside the bed on which her mother was sleeping. Sometime late during the night she felt someone take off her panties, touch her private part and rub it with his fingers. She woke up and saw it was the defendant. When the defendant knew the victim was awake he ceased his actions and left. According to the police summary of facts at this time his step-daughter was only 7 years of age.
8. These are the 5 counts to which the defendant has pleaded guilty and as noted they involve 4 different young girls, one of whom was his step-daughter. Given the defendant has a previous conviction for attempted rape on yet another young girl there is some justification for calling the defendant a serial sex offender. I agree with his defence counsel that he needs therapy and counseling. Something I hope he can get in prison because at the end of his sentence for these offences the prison doors will open and the defendant will be released back into the community where there are a lot more potential victims. I will deal with each of his offences separately.
9. S136/13 of the lifting of the skirt on the sleeping 14 year old relative of your wife, police summary of facts indicates that you tried to touch her vagina but the girl turned away. Because the girl is less than 16 years of age the maximum penalty for this offence is 7 years in prison. You are being prosecuted under the old Crimes Ordinance 1961 because this offence occurred in 2011 before the new legislation came into force. New legislation carries a much higher maximum penalty for this sort of offending but under the old legislation I consider a 12 month start point for sentence is appropriate. I upgrade that to 18 months because of the young age of the girl and because she was your relative living in the family with you; a relative of your wife but nevertheless a relative of yourself. From the 18 months start point I deduct 6 months for your guilty plea, leaves a balance of 12 months. On this charge convicted and sentenced to 12 months imprisonment.
10. Second charge of S139/13 on the same 14 year old victim. The sexual assault here consisted of you lying on the girl, hugging and kissing her neck. It happened a few months after S136/13. Likewise on that charge, convicted and sentenced to 12 months imprisonment. Both those sentences reflect the fact that you have a previous conviction.
11. S1401/12 involves a different victim, this time a 16 year old relative of your wife. Again the offending occurred late at night in the family home where you and your wife were staying. The sexual assault consisted of your touching the girls legs breasts and private part and you were chased out by the victim. Because the victim was 16 years of age a 5 year maximum penalty applies by law. A 2 year start point for sentence is appropriate. I reduce that by one-quarter Tua to reflect your guilty plea that leaves a balance of 18 months. Convicted on this charge and sentenced to 18 months in prison.
12. S1400/12 again on a different young girl and in a different place namely Vailima where you and your wife were staying at the time. The summary of facts here indicates the defendant went to where the victim was sleeping, touched her breasts, stomach and private part. Your actions were interrupted by your wife. The police summary says the victim was then 11 years of age and the maximum penalty for this is 7 years by the then law. Considering all circumstances a start point of 3 years in prison is appropriate. From that I will deduct one-quarter of sentence for your guilty plea, leaves a balance of 27 months in prison. On that charge, convicted and sentenced to 27 months in prison.
13. Charge S1399/12 involves a different victim in this case, your step-daughter. The sexual assault indicates that you removed the victims panties and fondled her private parts while she was asleep. She awoke so you stopped. The summary says that the victim at that time was 7 years of age and the maximum penalty for that offending is 7 years in prison under the then law. Considering all factors I adopt a start point of 5 years in prison considering the girls tender age and her relationship to you. I will deduct 1 year for your guilty plea, leaves a balance of 4 years. For this matter convicted and sentenced to 4 years in prison.
14. The question now is whether the terms for these 5 offences are to be cumulative or concurrent. Justifiably they can be cumulative. In other words a total of around 10 years in prison which would be in addition to your current term of imprisonment. However I believe such a sentence would infringe the principle of totality of sentencing which requires the end sentence be a proper reflection of the criminality of a particular defendant.
15. I am therefore going to vary your sentences as follows: I will order that the imprisonment terms for the indecent assault on the 7 year old, namely 4 years in prison and the indecent assault on the 11 year old, namely 2 years and 3 months in prison be cumulative so that these two periods amount to 6 years and 3 months in prison a reduction from the 10 odd years if all were to be made cumulative.
16. All your other imprisonment terms for the other offences against the other girls will be ordered to be served concurrent to this 6 years and 3 months. But the 6 years and 3 months must be cumulative to your existing term for attempted rape of 4 years on another young female relative.
17. In making this determination I take into account that a general as well as a personal deterrent for the defendant is necessary in these sentences and in part as a measure of protection of the young girls at least temporarily from these sorts of actions. The penalty also holds you accountable for your actions.
18. As the defendant is currently serving a term of imprisonment no credit can be given for any remand in custody time.
    

JUSTICE NELSON