Police v Lisa [2014] WSSC 205 (4 December 2014)

IN THE SUPREME COURT OF SAMOA
Police v Lisa [2014] WSSC 205

Case name:	Police v Lisa
Citation:	[2014] WSSC 205
Decision date:	04 December 2014
Parties:	POLICE (Prosecution) v TASISELE LISA male of Salelavalu Savaii. (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 Su’a-Mailo and O Tagaloa for prosecution L R Schuster for defendant
Catchwords:	-
Words and phrases:
Legislation cited:
Cases cited:	Police v Fuifatu [2012] WSSC 67
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

TASISELE LISA male of Salelavalu Savaii.
Defendant

Counsel: L Su’a-Mailo and O Tagaloa for prosecution
L R Schuster for defendant

Sentence: 04 December 2014

ORAL JUDGMENT OF NELSON J

1. The defendant pleaded guilty at mention to a number of charges of sexual assault on a 3 year old female. The defendant at the time was working and living at the complainants family at Tiavea but he is not related to the family. He is originally from Savaii. When he entered his pleas he was not represented by counsel but is now. One of the charges he pleaded guilty to was attempted sexual violation or attempted rape. His pre-sentence report states his date of birth as being 19 May 1991. And I note his mother was interviewed by the probation office for the purposes of that report. I presume that the date of birth was obtained from her. This means at the date of these offences in March 2014 the defendant was 22 years of age.
2. The defendants counsel confirmed his guilty plea to all charges except for the attempted rape. Counsel has filed an application to set aside the defendants guilty plea to that charge on the basis that the defendant did not at the time fully understand what he was pleading guilty to. The defendant asserts that he only pleaded guilty to the charges because he was remorseful about the indecent acts he committed on the young female. Counsel also submits there is no evidence to support the attempted rape, only the indecent acts. And that the defendant did not have the benefit of legal advice before entering plea.
3. A Mental Health Assessment of the defendant was undertaken by Doctor Ian Parkin, the resident consultant psychiatrist who heads the Mental Health Unit at the Tupua Tamasese Meaole Hospital. Doctor Parkin is very well regarded in his field and his expertise in this area has not been challenged by either counsel.
4. The court accepts he is a Mental Health Expert well able to conduct a mental health assessment of the mental capacity and capability of the defendant. His essential conclusions are that the defendant is fit to plea and at the time of the alleged incident his mind was not affected by any functional mental illness. But the defendant does have a mild to moderate degree of intellectual impairment resulting in his having the decision making ability of only a 12 to 14 year old rather than his chronological age which the doctor was unable to determine. Doctor Parkin also expressed the view that such impairment could lead to victimization in a prison environment. He also states the defendant gave the impression of being truly contrite for his wrong doing.
5. As to the relevant law for applications such as the one the court this is well settled. A guilty plea can only be reversed if the court is satisfied an accused person has not really pleaded guilty to the offence or that there has been some mistake and that there exists a clear defence. And in respect of the latter as observed in Police v Fuifatu [2012] WSSC 67: “the defence available must be obvious and clear, not speculative or fanciful”
6. Counsel in his submission has referred to various common law presumptions to the effect that a child between 10 and 14 is presumed to be incapable of committing an offence. And proving that the defendant knew what he was doing was merely naughty or mischievous is not sufficient. That may be the common law in this area. However this has been ousted by statute specifically section 12 of the Crimes Act 2013 which sets the age of criminal responsibility at 10 years. And provides in subsection (2) that a person between the ages of 10 and 12 can be convicted of a criminal offence if it is proven that he or she knew that the act or omission in question was morally wrong or contrary to law.
7. In the instant case the defendants mental capacity has been assessed to be between 12 and 14 years. So no proof as required by section 12(2) is necessary. But even if it were I am satisfied the circumstances of the offending namely the defendants action in waiting for the victim to be left alone by her caregiver aunty, and then taking her out to the back of the house where he was “fai fafie” where he then proceeded to sexually assault her; these factors coupled with the defendants subsequent remorse for his actions show a clear appreciation that what he was doing was morally wrong.
8. As to the main argument advanced by the defendant it is clear from his answers to Dr Parkin as contained on page 2 of the doctors report about a court room that the defendant knows the main players in a courtroom situation and their roles, and knew he had a right to speak to the judge in charge of the proceeding. Uncontested affidavit evidence has been provided by the prosecution that the attempted rape allegation against the defendant was explained to him when he was first interviewed by the police. It was also explained to him when the charge was read out to him in court. These coupled with admissions he made to the police during their interview that he wished to have sex with the girl is strong evidence that he understood that nature of the allegations against him. And the attempted rape charge to which he pleaded guilty.
9. Defendants counsel has submitted the court should not have regard to the defendants cautioned statement to the police and any admission therein because of the defendants mental age. There is some force in that submission but it must be balanced against the fact that the police had no reason to believe the person being interviewed was anything other than a normal 20 plus year old.
10. The defendants answers to the police questions as recorded in the statement certainly indicate no uncertainty or lack of clarity on his part. The defendant has not tried to renounce what he told the police. In point of fact what he told the police is generally consistent with what he told the probation office for the purposes of his pre-sentence report. There is therefore no indication that what the defendant told the police was anything other than the truth as confirmed by his pleas.
11. This is not the appropriate venue or time for considering the admissibility or reliability of the defendants cautioned statement and apart from the reservations abovementioned, defence has not sought to challenge the cautioned statement. The court must therefore give some weight to the statement but bearing in mind what the mental health expert has said that it comes from the mind of a 12 to 14 year old.
12. All in all I am satisfied the defendant fully understood the nature of the attempted rape allegation and charge and fully understood what he was pleading guilty to. As noted above his life experience is according to his date of birth 22 years. The real issue is what to do with a 22 year old defendant with the mental capacity of a 12 to 14 year old who has committed a serious sexual assault on a 3 year old female. But that is a matter to be canvassed at sentencing.
13. As to the argument about lack of evidence to support the charge and lack of representation before the defendant pleaded the former matter is not the issue. There is from what I can determine evidence to support the charge namely the complainants statement as supported by that of other police witnesses together with the cautioned statement. The question is whether the defendant has a clear defence to that. The answer to that must be no.
14. As to the lack of representation, that is a given. But that is not the thrust of the defendants argument in this matter. Even if it were it is not a basis by itself for setting aside a guilty plea entered by an unrepresented defendant.
15. For these reasons the application to reverse his plea to the attempted rape charge is declined. The question now as to a sentencing date gentleman.
16. Tasisele tusa ai ma le faaiuga a le faamasinoga o lea ua teena lau talosaga e toe sui lau ioe i le tete’e i le moliaga lea o le taumafai e toso le teineitiiti lea. O lea o le a tolopō lau matupu mo taeao sei oo mai lou tina, o lea e logo mai e le ofisa fa’anofo va’ava’aia o lo’o fa’amoemoe e malaga mai taeao. E iai nai fesili ou te fia tuuina i lou tina e uiga i le mataupu lenei. Toe valaau taeao i le taeao lau mataupu i le 10:00 am.
    

JUSTICE NELSON