Police v Fesola'i [2015] WSSC 199 (27 October 2015)

IN THE SUPREME COURT OF SAMOA
Police v Fesolai [2015] WSSC 199

Case name:	Police v Fesolai
Citation:	[2015] WSSC 199
Decision date:	27 October 2015
Parties:	Police (Prosecution) v Joseph Fesola’i a.k.a Taape Sami male of Faatoia and Auckland, New Zealand.
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa
Judge(s):	Justice Tuatagaloa
On appeal from:
Order:	The accused is to serve 2months imprisonment to be followed with 10 months supervision with the following special conditions: (i) To attend Men’s Advocacy with SVSG; (ii) To attend Anger Management with SVSG; (iii) To serve 80 hours community service; (iv) To not associate with girls under 16 years old without adult supervision.
Representation:	Ms Fuifui for the Prosecution Mr Wulf for the Defendant
Catchwords:	Sexual connection with a female between 13-16 years of age; common assault; sexual connection consensual but underage; assaulted pregnant victim;
Words and phrases:
Legislation cited:	Crimes Act 2013 s 50(a)(i); 59(1); 123;
Cases cited:
Summary of decision:

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

JOSEPH FESOLA’I (A.K.A TAAPE SAMI),
male of Faatoia & Auckland New Zealand.
Defendant

Counsel:
Ms Fuifui Ioane for the Prosecution
Mr Shane Wulf for the Defendant

Sentence: 27 October 2015

SENTENCE OF JUSTICE TUATAGALOA

The charges:

1. The accused, Joseph Fesola’i (a.k.a Taape Sami) appears for sentence having pleaded guilty to eight (8) counts of sexual connection with Talafu Lui, a female aged between 13 years and 16 years’ old contrary to section 50(a)(i) and section 59(1) and (5) of Crimes Act 2013. This offence attracts the maximum penalty of 10 years’ imprisonment.
2. The accused also pleaded guilty to one (1) count of common assault against Talafu Lui contrary to section 123 of the Crimes Act 2013. This offence carries the maximum penalty of one year imprisonment.

The offending:

3. According to the prosecution’s summary of facts, the accused and the victim had a boyfriend – girlfriend relationship in June 2013 which progressed to a sexual relationship in December 2013.
4. They had sex twice in December 2013 and then twice in each month from June – August 2014. All these took place at the accused’s house except one (1) time at the victim’s house.
5. Sometimes in August 2014 the accused migrated to New Zealand when he received permanent residency but still kept in contact with the victim via Facebook.
6. The victim found out she was pregnant and she contacted the accused sometimes in September 2014 and told him about the pregnancy. The accused in the Pre-Sentence Report (PSR) said that when he was told about the pregnancy stopped any further contact with the victim.
7. In December 2014 the accused and his family came to Samoa for the holidays. The accused contacted the victim in January 2015 for her to return clothes that he left at her house.
8. When the victim went to return the accused clothes, the accused assaulted the victim by punching her on the left side of her face and on the chest. The victim at the time was 5 – 6 months’ pregnant.
9. The matter was reported to Police and resulted in the charges now before the Court.

The Accused:

10. The accused at the time of the offending was 18 years’ old and is a first offender.
11. The pre-sentence report says that the accused was adopted by his maternal aunt in New Zealand and is the reason why he left in August 2014 when he received his permanent residency.
12. The pre-sentence report on the accused says of a young man, who grew up in a stable family environment. His biological parents speak of him as trustworthy, reliable and hardworking.
13. The testimonials from the accused Pastor, his adopted mother and sister, employer and matai of his family all say of the accused being an obedient, reliable and hardworking young man.
14. The pre-sentence report confirmed an apology by the accused family to the victim’s family.

The Victim:

15. The victim was 13 years’ old at the time of the offending.
16. The victim impact report says that the victim loved the accused and felt hurt and confused when the accused rejected her and assaulted her after she fell pregnant.
17. The victim stopped school when she fell pregnant.
18. The victim has since given birth to a baby girl. The victim impact report says that the victim is struggling to look after the baby and is thinking of adopting her out to her cousin so that she can go back to school. She is said to have made her peace with what happened and she no longer wants the accused to be involved in her life or in the baby’s life. However, in a supplementary victim impact report the victim said that the accused is free to visit their baby daughter whenever he wants to.

Restorative Justice Conference (‘RJC’):

19. The court ordered a RJC given the circumstances of this case that –
    • (i) the accused and the victim are teenagers;
    • (ii) they were in a boyfriend/girlfriend relationship;
    • (iii) their families or specifically the victim’s family was aware of the relationship;
    • (iv) the victim became pregnant;
    • (v) there is an indication from the accused that still wanted to maintain relationship with the victim and to have a contribution to his daughter’s life.
20. Unfortunately, probation did not conduct RJC as ordered by the court. In any event, it won’t change the sentence to be imposed by the court.

The Aggravating and Mitigating Features of the sexual offending:

21. The following are the aggravating features of the sexual offending:
    1. Disparity of Age: the accused was five (5) years older than the victim.
    2. Vulnerability of the Victim: the victim at age 13 years is quite young and therefore vulnerable.
    3. Scale of offending: the accused had sex not once but eight (8) times with the victim, even though he knew that the victim was younger than him but did not know that having sex with a younger girl was unlawful. This is a reflection of his age apart from his level of education.
    4. Impact on the victim: The victim stopped schooling when she fell pregnant.
22. There are no aggravating feature(s) personal to the offender.
23. The mitigating features to the offending are (i) these are two teenagers who at the time were in love and were in a boyfriend – girlfriend relationship, (ii) the family of the victim knew of this boyfriend – girlfriend relationship and did not do anything about it. The summary of facts and probation report say that the sexual relationship between the accused and victim was only brought to the attention of the authorities when the assault was reported. The probation report say the accused called the victim when he came for the Christmas holidays in January 2015 to return his clothes that he left at her house. This implies that the accused spent quite a lot of time at the victim’s house.
24. The mitigating features personal to the offender are his:
    1. Early plea to the charge.
    2. Apology by his family to the victim’s family.
    3. Age of the accused, still a teenager at the age of 18 years’ old.
25. I do not consider previous good character as a mitigating factor for the reason that the accused is only 18 years old, is fairly young to be appearing in court compared to an accused that is twice his age.

Discussion:

26. This is unlawful sexual intercourse because of the age of the victim albeit consensual. Obviously, the law place the responsibility upon those accused who are older than the victims that they should or ought to know better that it is, not right or lawful to have sex with a girl under 16 years old.
27. The Prosecution asks for a custodial sentence of at least 12 months starting point. They submit that the court by imposing a stern sentence will denounce this type of conduct and will further act as a deterrent for this type of offending.
28. The defense counsel asks the Court for a non-custodial sentence given the circumstances of this particular sexual offending. Counsel for the accused acknowledged that the sexual offence the accused is charged with is serious and that the Court usually imposes imprisonment terms as deterrence. However, the Court should determine each case based on its facts.
29. I agree with the Prosecution that there is a need for deterrence of this sort of behaviour and to send a message that men cannot have a sexual relationship with girls under 16 years’ old consensual or otherwise.
30. The Court as practice has always determined sentence for each case according to its own facts and circumstances. This approach is reflected in the sentences imposed by the Court in the cases (cited by the Prosecution in their supplementary memorandum) on s. 59, where the range of sentences imposed by the Court vary from supervision and community service^[1] to imprisonment term.
31. Of interest is the age disparity of 10+ years between the accused and the victim in the cases cited by the prosecution.

Unlawful Sexual connection: s. 59

32. For the offence of unlawful sexual connection under s. 59, I take two and half (2 ½) years as a starting point for sentence. There are no aggravating features I found personal to the offender;
    • I deduct 6 months for the mitigating features personal to the offender;
    • I deduct further 8 months for the accused youth or age;
    • I will have mercy on this young accused taking into account the impact of a conviction on him. That is, he was adopted by his aunt in
      New Zealand so that he could have a bright or good future. He obtained permanent residency in New Zealand. His conviction will no doubt affect his obtaining New Zealand Citizenship and a good and bright future in New Zealand will just have to wait a little longer. I deduct a further 2 months which then brings it to 14 months.
    • I give 1/3 deduction for the accused early plea which is 4 months.
33. The end sentence for the sexual connection is 10 months for each charge.
34. 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 on sexual offending under s. 59. The sentences also depend on the circumstances of each case.
35. In light of the circumstances of this sexual offending a custodial sentence is not appropriate but a supervision term with special conditions will be most appropriate. This is not to be taken that, the court condones such behaviour and disregards the seriousness of such offending but that, the court is of the view having taken everything into consideration, that a non-custodial sentence will also deter and denounce such behaviour and is the most appropriate to be imposed.
36. Deterrence and denunciation of such behaviour does not always have to be by way of custodial sentence. A longer non-custodial sentence can also deter and denounce such behaviour.
37. The accused for the unlawful sexual connection is sentenced to 10 months’ supervision for each sexual offending to be served concurrently.

Assault:

38. The offending of assault is considered separate from the unlawful sexual connection offending. The two offences were committed separate and removed of each other. Any penalty imposed on the assault offending will be independent to the sexual offending and therefore cumulative.
39. The aggravating features to the offending of assault are:
    1. Vulnerability of victim: The victim was 5-6 months pregnant when the accused assaulted her.
    2. Degree of violence: The accused punched the victim on the left side of her face and continued to punch her on the chest.
    3. Injury: The victim sustained bruises to the left side of her face.
40. The mitigating features personal to the offender are his:
    1. Early plea to the charge.
    2. Apology by his family to the victim’s family.
    3. Age of the accused, still a teenager at the age of 18 years’ old.
41. For reason in paragraph 26 previous good character is not considered as a mitigating factor in this offending as well.
42. For the offence of assault, I impose a starting point of 6 months, less 3 months for youth or age and less 1/3 discount for early plea to this offence, which brings it to 2 months.
43. The end sentence for assault is 2 months.
44. In the circumstances of the assault a custodial sentence is considered appropriate. The accused has to know that it is not alright to resort to violence, nor to use violence on a female and especially one that is pregnant.
45. A Samoan male who lay’s a hand or beats up a female is considered in our society as a coward and one who does not respect his own mother, sisters and aunts in his own family. It is a reflection of one’s own environment and the sort of values he is taught and brought up on.

The Result:

46. The accused, Joseph Fesola’i is convicted and sentenced as follow:
    • (i) 10 months supervision with special conditions for each sexual offending to be concurrent; and
    • (ii) 2 months’ imprisonment for the offence of assault;
47. The accused is to serve 2months imprisonment to be followed with 10 months supervision with the following special conditions:
    • (v) To attend Men’s Advocacy with SVSG;
    • (vi) To attend Anger Management with SVSG;
    • (vii) To serve 80 hours community service;
    • (viii) To not associate with girls under 16 years old without adult supervision.
      

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Justice Mata Tuatagaloa

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^[1] P v Taulapapa [2014]WSSC 66