Police v Lafu [2015] WSSC 110 (2 October 2015)

SUPREME COURT OF SAMOA
Police v Lafu [2015] WSSC 110

Case name:	Police v Lafu
Citation:	[2015] WSSC 110
Decision date:	2 October 2015
Parties:	POLICE v FALEAGAFULU TALITAU LAFU male of Sinamoga and Sydney, Australia
Hearing date(s):
File number(s):	1423/15
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- The accused is convicted of the charge against him and fined $750 to be payable in 7 days, in default 7 months imprisonment.
Representation:	L Sua- Mailo for prosecution D Roma for accused
Catchwords:
Words and phrases:	having sexual connection with a dependent family member under the age of 21 years – pleaded guilty at the earliest opportunity – breach of trust – premeditation – the victim impact report – mitigating and aggravating features – gravity of the offending - sentence
Legislation cited:	Crimes Act 2013, s.56(1)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: 1423/15

BETWEEN

P O L I C E

Prosecution

A N D

FALEAGAFULU TALITAU LAFU male of Sinamoga and Sydney, Australia

Accused

Counsel: L Sua- Mailo for prosecution

D Roma for accused

Sentence: 02 October 2015

S E N T E N C E

The charge

1. The accused Faleagafulu Talitau Lafu who is 55 years of age appears for sentence on one charge of having sexual connection with a dependent family member under the age of 21 years, contrary to s.56(1) of the Crimes Act 2013, which carries a maximum penalty of 14 years imprisonment. To the charge the accused pleaded guilty at the earliest opportunity.

The offending

2. At the time of the offending the accused had come from Australia for the funeral of his mother in Samoa and had stayed with his family at Sinamoga. He is the maternal uncle of the victim who is 17 years of age.
3. At the time of the offending the victim was living with her parents in the same household at Sinamoga while the accused was staying in another house belonging to the family only a few metres away. The accused shared the same responsibilities over the whole family as the victim’s parents and had authority over the victim as her uncle. From time to time the accused would issue instructions to the victim and give her money.
4. On Monday morning 27 April 2015, the victim stayed home from school as she had not been well. Around 10am, the victim went to the house where the accused was staying and had a conversation with him before asking him to massage her back as it was in pain. The accused agreed and the victim undressed leaving only her panties on and her lavalava. The accused then massaged the victim’s back while she laid on the bed facing down and while her lavalava was tucked below her lower back. At that time, the victim’s sister and her husband were present but when the massage was finished it was only the victim and the accused left inside the house. After a while, the victim dozed off to sleep. When she woke up, she went and laid on the floor. The accused joined her on the floor and laid beside her. The accused then proceeded to flirt with the victim and to fondle her private part by inserting his fingers into her genitalia. He continued this for a while without knowing that the victim’s older sister and her husband were watching what he was doing.

The victim impact report

5. I must say that I find the contents of the victim impact report very suspicious. It appears from the summary of facts that it was the victim who “instigated” this incident. She also appears to have consented to it because the accused continued to perform this indecent act on her but she did not scream or call out even though she must have known that there were people of her family nearby. I do not accept what is said by the victim in the victim impact report that she is sad and unhappy because of what the accused had done to her and that this will affect her for the rest of her life. It is also inconsistent with what the accused told the probation service about what happened as it appears from the pre-sentence report. The victim also did not complain about the accused to anyone. It was her sister who reported this matter to the victim’s brother who in turn lodged a complaint with the police.

The accused

6. The accused as earlier mentioned is 55 years of age. He is married with three grown up children. He resides with his family in Australia but had returned to Samoa for the funeral of his mother. The pre-sentence report shows that he has had a good employment history and had contributed much to the establishment of his church in Australia.
7. The accused as the police records show has no previous convictions. The testimonial from the accused’s wife shows that the accused is a good husband and an honest and trustworthy person. The character testimonials from the accused’s pastor and members of his church in Australia speak highly of the accused and are in support of him.
8. It appears that the accused was the subject of temptation and allowed his desires to prevail over his good judgment.

The aggravating features relating to the offending

(a) Breach of trust

9. Given the family connection between the victim and the accused, being one of niece and uncle, this case involved a breach of trust which is an aggravating feature relating to the offending.

(b) Age difference

10. The age difference of 38 years between the victim and the accused is also an aggravating feature relating to the offending.

(c) Premeditation

11. There is no evidence of grooming or any pre-planning. I accept, however, that there was some degree of premeditation but that was at a low level and therefore carries limited weight as an aggravating feature relating to the offending.

The mitigating features relating to the accused as offender

(a) Previous good character

12. The accused is a first offender and the character testimonials from his wife, church pastor, and members of his church show that at age 55 the accused had been a person of good character prior to the commission of this offence. I accept that he is remorseful and deeply regrets what he has done as shown from his pre-sentence report. He has also readily admitted his offending to the probation service.

(b) Early guilty plea

13. The accused’s guilty plea at the earliest opportunity is an important mitigating feature relating to him as offender.

Discussion

14. The gravity of this offending is towards the lower end of the scale. At age 55 years, the accused is also a first offender and had been a person of good character. He has also pleaded guilty at the earliest opportunity and had readily admitted his offending to the probation service as shown from his pre-sentence report.

Result

15. The accused is convicted of the charge against him and fined $750 to be payable in 7 days, in default 7 months imprisonment.

CHIEF JUSTICE