Police v Taulapapa [2014] WSSC 66 (11 November 2014)

SUPREME COURT OF SAMOA

Police v Taulapapa [2014] WSSC 66

Case name: Police v Taulapapa

Citation: [2014] WSSC 66

Decision date: 11 November 2014

Parties:
POLICE prosecution AND VAOVASA LEFONO MOANA TAULAPAPA accused, male of Luatuanuu and Fagaloa.

Hearing date(s): 4 November 2014

File number(s): S2586/14

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU MAKA SAPOLU

On appeal from:

Order:

Representation:
L Su’a-Mailo for prosecution
Accused in person

Catchwords:

Words and phrases:
sexual connection with a young person, aggravating and mitigating features, sentence,

Legislation cited:
Crimes Act 2013s.59 (1) s59(5) s.50

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S2586/14

BETWEEN

P O L I C E
Prosecution

A N D

VAOVASA LEFONO MOANA TAULAPAPA male of Luatuanuu and Fagaloa.
Accused

Counsel
L Su’a-Mailo for prosecution
Accused in person

Sentence: 11 November 2014

S E N T E N C E

The charges

1. The accused appears for sentence on five counts of having sexual connection with a young person, contrary to s.59 (1) of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment. The expression “sexual connection” is defined in s.50 of the Act to include penetration of the genitalia of any person by any part of the body of another person. The expression “young person” is defined in s.59 (5) to mean a person who is over the age of 12 years and under the age of 16 years.
2. The accused also appears on five counts of doing an indecent act on a young person, contrary to s.59 (3) of the Act, which carries a maximum penalty of 7 years imprisonment. The expression “young person”, as already mentioned, is defined in s.59 (5) to mean a person who is over the age of 12 years and under the age of 16 years. The expression “doing an indecent act with or on a young person” is also defined in s.59 (5) to include indecently assaulting the young person.
3. To all counts, the accused pleaded guilty at the earliest opportunity.

The offending

4. As shown from the pre-sentence report, the accused was 30 years and 2 months old at the time of the offending. On the other hand, the victim impact report shows that the victim was 14 years 2 months and 3 weeks old at the same time.
5. According to the prosecution’s summary of facts, the accused and the victim first met at Savalalo on a Saturday at the end of May or the beginning of June 2014. They engaged in a conversation and a boyfriend/girlfriend relationship started between the accused and the victim. They began dating each other and frequently spoke to each other on the phone, presumably their mobile phones.
6. They then agreed to meet at an inter-school athletic competition to be held at the Apia Park on Friday 15 August 2014. The victim was attending school at the time. After the athletic competition in the late afternoon, the victim was able to persuade and convince the accused to take her with him to his family’s house and so they left in a bus to the accused’s village. When they arrived at the accused’s village, they went up a mountain to the house of the accused’s brother. It was already evening time and it was starting to get dark. When they got to the house of the accused’s brother, they went to a nearby faleoo (hut) where the accused hung up a mosquito net and laid out a bed for him and the victim to sleep on. Once inside the mosquito net, they started to make love to each other. The victim removed her clothes allowing the accused to fondle her vagina and her breasts. They then had sexual intercourse before they went to sleep.
7. On the following night, Saturday 16 August 2014, the accused and the victim again slept in the same faleoo and had sexual intercourse again. The same thing happened again inside the faleoo on Monday night 18 August 2014. On Tuesday night 19 August 2014, the accused and the victim had sexual intercourse in front of the accused’s family flea market near the main road at around 7:00pm and then inside the faleoo around 9:00pm. The victim was a consenting party to all of these acts of sexual intercourse. In effect, the accused and the victim were living as husband and wife at the accused’s family.

The accused

8. As already mentioned, the accused was just over 30 years at the time of the offending. As shown from the pre-sentence report, he finished school at Year 12 because his family needed another source of income to help his father with the family’s financial needs. At the time of the present offending, the accused was employed in a company in Apia. He is still working for the same company.
9. As it is also shown from the pre-sentence report, the accused told the probation service that it was the victim who asked him if they could go to his family and when they got to his family, the victim wanted him to take her as his wife and they both agreed to live together in a de facto relationship. The accused also told the probation service that a week later the father of the victim came to his family to sort out this matter and an agreement was reached that the victim will live with the accused. However, the principal of the victim’s school reported this matter to the police.
10. The accused also told the probation service that he is deeply in love with the victim regardless of what has happened and he wants to marry her. He also says that he was not aware of the age of the victim at the time of the offending.
11. Both the father of the accused and the father of the victim appeared and informed the Court that this matter has been settled. The victim’s aunt also told the probation service that her family is in support of the accused in this matter.
12. The accused is a first offender and the testimonials from his father, the pulenu’u of his village, the pastor of his church, and his current employer all show that he had been a person of good character prior to the commission of these offences. The accused has also pleaded guilty to the charges against him at the earliest opportunity.

The victim

13. As already mentioned, the victim was just over 14 years at the time of the offending and was attending school.
14. In the victim impact report, the victim says that she still thinks of the accused all the time and wants to see him. She also says that she still loves him. Furthermore, the victim says that she does not expect an apology from the accused as she wanted to be with him at the time. The accused had also told her to go home but she was insistent on staying with him.

The aggravating and mitigating features

15. The aggravating features in relation to the offending are the number of times the accused had sexual intercourse with the victim and the age difference of 16 years between the accused and the victim. On the other hand, there are several mitigating features in relation to the offending. The relationship between the accused and the victim started off as a boyfriend/girlfriend relationship. After dating each other for about ten weeks, they both agreed to meet at an inter-school athletic competition where the victim persuaded and convinced the accused to take her with him to his family. Thus, the victim had an important and active part to play in causing this offending to happen. She was also a willing, consenting, and active party to the acts of sexual intercourse that took place, as shown from the summary of facts. She is obviously deeply in love with the accused and says that the accused had told her to go home but she was insistent on staying with him. Even now, she still thinks about the accused all the time and wants to see him again. The accused, as shown from the pre-sentence report, is also deeply in love with the victim and would like to marry her.
16. In relation to the accused as offender, there are no aggravating features but there are also several mitigating features. This matter has been settled between the father of the victim and the family of the accused as well as the accused. The father of the victim had also agreed to his daughter living with the accused. The aunty of the victim also told the probation service that their family is in support of the accused in this matter. The accused was also co-operative with the police and the probation service and readily admitted to his offending. The accused is also a first offender and the testimonials from his father, the pulenu’u of his village, the pastor of his church, and his current employer all show that he had been a person of good character prior to the commission of these offences. He is also remorseful and has pleaded guilty to the charges against him at the earliest opportunity.

Discussion

17. Having given careful consideration to the circumstances of this case, particularly the aggravating and mitigating features, I have come to the view that a custodial sentence will not be appropriate. At the same time, I am conscious that the purpose of a provision like s.59 of the Crimes Act 2013 is not only to protect young girls from being taken sexual advantage by males but also to protect young girls from themselves because of their inexperience and lack of maturity.
18. Even though it appears that the accused and the victim are deeply in love with each other, and both went to live together as husband and wife in the accused’s family, they must now know that it is a criminal offence by the accused for them to have sexual intercourse while the victim is under the age of 16 years. The accused, the victim, and their respective families must bear that in mind so that the offending that has happened will not happen again as the victim is still underaged.

The result

19. The accused is sentenced to 12 months supervision and ordered to perform 200 hours of community service as directed by the probation service.
    

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CHIEF JUSTICE