Police v Lunai [2015] WSSC 176 (16 October 2015)

IN THE SUPREME COURT OF SAMOA
Police v Lunai [2015] WSSC 176

Case name:	Police v Lunai
Citation:	[2015] WSSC 176
Decision date:	16 October 2015
Parties:	Police (Prosecution) and Taliomanusamoa Siaosi Lunai male of Papauta (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tuatagaloa
On appeal from:
Order:	I therefore convict and sentence the accused to 15 months’ supervision for each sexual offending to be served concurrently. Taliomanu Lunai you are convicted and sentenced to 15 months’ supervision with the following special conditions: You are to attend any educational or sports programmes as directed by probation. You are to attend a life skills programme through the Ministry of Women. Any other conditions as directed by probation.
Representation:	Ms L Tavita & Mr Tagaloa for the Prosecution Ms T Leavai for the Defendant
Catchwords:	Sexual connection with female over the age of 12 but under 16 years – carnal knowledge –no previous conviction –
Words and phrases:
Legislation cited:	Crimes Act 2013 s 50 & 59(1)(5); Crimes Ordinance Act 1961.
Cases cited:	Police v Taulapapa
Summary of decision:

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

TALIOMANUSAMOA SIAOSI LUNAI, male of Papauta
Defendant

Counsel:
Ms L Tavita & Mr Tagaloa for the Prosecution
Ms T Leavai for the Defendant

Sentence: 16 October 2015

ORAL SENTENCE OF JUSTICE TUATAGALOA

2. Taliomanusamoa Siaosi Lunai, you appear for sentence having pleaded guilty to two (2) counts of sexual connection with Charity Fesili, a female over 12 years and under 16 years’ old contrary to section 50 and section 59(1)(5) of the Crimes Act 2013. This offence attracts the maximum penalty of 10 years’ imprisonment.
3. According to the prosecution’s summary of facts, you and the victim had a boyfriend/girlfriend relationship sometime in December 2013. In September 2014, you at around midnight went to the victim’s house and had sexual intercourse with the victim in her room. The victim’s mother found you in the victim’s room the next morning and chased you out and warned both you and the victim not to repeat what you had done.
4. Nothing took place since September 2014 until February 2015 when you again went to the victim’s house at around 1.00am and again had sexual intercourse with the victim in her room. You were found by the victim’s sister the next morning and the matter was then reported to the police. It seems from the summary of facts that you and the victim planned the second sexual encounter.
5. At the time of the offending you were 23 years’ old, you are a first offender and therefore you are of previous good behaviour and I give you credit for your previous good behaviour.
6. From the probation report you had a good education, you are a good sportsperson and you represented Samoa in hockey and you play the piano in the Samoa National Orchestra. Also from the probation report you have been ex-communicated (if that is the right word) or you no longer take Holy Communion and you were not allowed to sit the entrance exam for Malua Theological College in August this year which prior approval was already given.
7. The victim in this matter was 14 years’ old at the time of the offending. The victim impact report does not really say anything except the victim felt scared of her family. She also said that the accused has stopped approaching her, although from counsel for the accused submission on instructions from the accused that he is still in contact with the victim, maybe by way of mobile.
8. The victim’s parents have confirmed with probation that the victim still attends school and that is all they wanted for her is for her to continue with her education and to do well at school. I ordered a Restorative Justice Conference given the circumstances of this case that:

1. You and the victim’s families have a very close, neighbourly relationship.
2. You and the victim were in a boyfriend/girlfriend relationship.

100. The victim’s mother was aware of the relationship.

9. The report says that at the Restorative Justice Conference ordered by the Court, you apologised to the victim’s family and was accepted. Your parents and the victim’s parents had a discussion and had resolved any animosity that may have arisen from what happened.

The Aggravating and Mitigating features of the sexual offending

10. The disparity of age, the victim was nine years younger than the accused. The age difference also shows the vulnerability of the victim. You knew that the victim was younger than you. I accept what your counsel said that you did not know that she was that young.
11. The scale of the offending. You had sex not once but twice with the victim.
12. As for pre-meditation, if I place any weight on it, it would not be that significant because the second sexual encounter both you and the victim planned it. The first sexual offending you went to her house and she allowed you in. If there is any pre-meditation on your part in the first sexual encounter, it is minimal.
13. I find the boyfriend and girlfriend relationship a mitigating feature to the offending.

Discussion

14. The former offence of carnal knowledge under the Crimes Ordinance Act 1961 is now replaced by the more sophisticated offence under section 59 of the Crimes Act 2013 which has also raised the penalty from 7 years maximum to a maximum of 10 years’ imprisonment for having sex with a girl over 12 years but under 16 years of age.
15. The prosecution is asking for a custodial sentence of at least 12 months starting point. They also submit that the Court take an approach that reflects Parliaments decision to increase the penalty of this offending to 10 years’ imprisonment and impose a stern sentence to denounce this type of conduct and to further act as a deterrent for this type of offending. They, the prosecution, is asking for the Court to always impose a custodial sentence with this sort of offending.
16. Counsel for the accused asks the Court for a non-custodial sentence given the circumstances of the sexual offending. Counsel acknowledge that the sexual offending the accused is charged with is serious and that the Court usually imposes imprisonment terms as deterrence but in this matter she is asking that the Court does not have to impose a custodial sentence; that deterrence could also be imposed by other means of non-custodial sentence.
17. The Court should determine each case based on its own facts. This approach is reflected in the sentences imposed by this Court (Supreme Court) on section 59 where the range of sentences imposed vary from supervision and community service to imprisonment term.
18. Obviously the law placed the responsibility upon the accused who is older than the victim, that he should know better, that it is not right or lawful to have sex with a girl under the age of 16 years old. The Court has treated this as more aggravating when the age gap between the accused and the victim is 10+ years and that is reflected in the sentences imposed by the Court of usually custodial.
19. However, in the case of Police v Taulapapa^[1] the accused was 30 years’ old and the victim was 15 years’ old. They were in a boyfriend/girlfriend relationship and ended up living as husband and wife. The Court imposed supervision and community service in that case. Recently in Police v Oliva Sale^[2] the Court imposed 12 months supervision with special conditions which one of those conditions was 100 hours community service.
20. As I have discussed earlier on today with Ms Tavita, all of the authorities cited by the prosecution are custodial sentences but like I said, this Court have imposed non-custodial sentences for this offending that is also based on the particular set of facts of each case.

Sentencing Tariff

21. For the offence of sexual connection under section 59, if imprisonment were appropriate I would take 18 months as a starting point for sentence. The mitigating features personal to the offender are, (i) his early plea to both charges, this is also a sign of the accused taking responsibility for his actions and acknowledging the wrong he has done; (ii) the ifoga performed by his family to the victim’s family and the accused personal apology to the victim’s family in the Restorative Justice Conference, and (iii) you are a first offender therefore of previous good behaviour.
22. There are no aggravating features which I find personal to the accused. I will deduct six (6) months for the mitigating features personal to you which come down to 12 months. I will then give 30% deduction for the accused early plea which is four months. The end sentence for the sexual connection will then be eight months for each charge.
23. A custodial sentence is the usual penalty imposed by the Court for this type of offending but not the only penalty that has been imposed by the Court. The Court has demonstrated this by the range of sentences it has imposed for sexual offending under section 59 which sentence also depends on the circumstances of each case.
24. In light of the circumstances of this case, a custodial sentence is not necessary or appropriate but a supervision term with special conditions will be most appropriate. Deterrence and denunciation of such behaviour does not have to be by way of custodial sentence. A longer non-custodial sentence can also deter and denounce such behaviour.

The Result

25. I therefore convict and sentence the accused to 15 months’ supervision for each sexual offending to be served concurrently. Taliomanu Lunai you are convicted and sentenced to 15 months’ supervision with the following special conditions:

4. You are to attend any educational or sports programmes as directed by probation.
5. You are to attend a life skills programme through the Ministry of Women.
6. Any other conditions as directed by probation.

26. I believe that the sentence imposed is the most appropriate in the circumstances of this offending and will also, as I said earlier, send a stern message out that it is not right or lawful to have a sexual connection with young girls under 16 years old. You are a young man with a bright future ahead of you. Use this sentence imposed by the Court as a lesson to you. Should you breach any conditions imposed of your 15 month supervision I assure you, you will be in custody.
    

..............................
Justice Mata Tuatagaloa

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^[1] [2014] WSSC 66
^[2] (unreported) 3 June 2015