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Police v Lilo [2015] WSSC 241 (6 November 2015)
IN THE SUPREME COURT OF SAMOA
Police v Lilo [2015] WSSC 241
Case name: | Police v Lilo |
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Citation: | |
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Decision date: | 06 November 2015 |
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Parties: | POLICE (Prosecution) LIU LILO, male of Saleilua Falealili. (First Defendant) and TUITAPU LILO female of Saleilua Falealili. (Second Defendant) |
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Hearing date(s): | - |
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File number(s): | S3669/14, S3668/14 |
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Jurisdiction: | Criminal |
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Place of delivery: | Supreme Court of Samoa, Mulinuu |
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Judge(s): | Justice Nelson |
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On appeal from: |
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Order: | Both defendants will accordingly be convicted and in respect of the mother Tuitapu Lilo she will be ordered to come up for sentence
within a period of 2 years on the following special conditions: the first is not to reoffend; she is to stay away from her co-defendant
son; she is to live only where approved by probation office. Would there be any other special conditions that the probation office
feel I should make part of the conditions of the sentence? (Probation officer said no). Report as directed by probation office as
and when required by the office. In respect of the co-defendant Liu Lilo he will be placed on 12 months supervision. Special conditions of his supervision firstly
100 hours community service. Secondly no alcohol of any form during the period of supervision. Thirdly he is to stay away from
his mother the co-defendant. And he is to live only where approved by the probation office. He is further to attend any rehab programs
as directed by the office. In addition he is not to associate with any younger female siblings of his family without appropriate
parental or other supervision. Finally he is to obey all other instructions given him by the probation office during the period
of supervision. |
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Representation: | L Tavita for prosecution K Kruse for first defendant M V Peteru for second defendant |
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Catchwords: | - |
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Words and phrases: |
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Legislation cited: |
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Cases cited: |
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Summary of decision: |
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IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
BETWEEN:
POLICE
Prosecution
AND:
LIU LILO, female of Saleilua Falealili.
First Defendant
AND:
TUITAPU LILO, female of Saleilua Falealili.
Second Defendant
Counsel: L Tavita for prosecution
K Kruse for first defendant
M V Peteru for second defendant
Sentence: 06 November 2015
SENTENCE
- Defendants have pleaded guilty to one count each of incest. That offence carries a 20 year maximum penalty at law. It is therefore
a very serious charge. The police summary of facts which is not contested by the defendants indicates the first defendant Liu Lilo
is 22 years of age, a single male of Saleilua, the second defendant Tuitapu Lilo is a 50 year old married female also of Saleilua,
she is the first defendants biological mother. She has five children and stays at home and renders domestic duties. She had at
the time of offending a male partner her husband. At all material times the defendants were living together in the same household
and had been for some time.
- Some time during the month of August 2014 the first defendant Liu returned home late at night intoxicated. His mother was at home
sleeping with her young daughter the younger sister of the first defendant. At the time the second defendants husband was not present.
The first defendant approached the second defendant and asked to have sex. A request which she agreed to. The couple engaged in
consensual intercourse after which the first defendant left the mosquito net. They were however spotted by a friend of the first
defendant who happened to be in the vicinity and this is how the matter found its way to the police.
- The prosecution are seeking a prison term for the son but not for the mother. They cite in support various instances where this court
has imprisoned defendants for the crime of incest. Counsels for both the defendants have submitted that imprisonment terms are in
the circumstances not an appropriate method of dealing with this situation.
- It is trite law to say that each case turns on its own facts. Having reviewed the facts of this matter I note that there are significant
differences between this case and the sort of cases cited by prosecution in support of their submission. This is not a case of betrayal
by a father of the love and trust of a young daughter. Or of an older family member or sibling taking advantage of a younger vulnerable
family member.
- It is also noted mental health assessments have been carried out on both defendants. For the mother there has been two assessments.
These both concur that she is a person of very low intelligence with a mental age of less than 10 years old. She attended school
only to primary level and is according to the reports that I have read not capable of simple arithmetic calculations. The report
states she is able to make simple decisions for herself and in relation to chores in the family but has much difficulty writing and
cannot read. The general consensus of opinion is she is very quiet keeps to herself and does not socialize. She attends to the
functions of a mother and as a family member goes to church and afterwards goes straight home. She has a simple life and in fact
in common Samoan parlance she would be described as a simple person (“le atoatoa le mafaufau”). If there was any taking
advantage of in this case it was in respect of her.
- Her co-defendant son is only marginally better. His assessment shows him to have the intelligence level of a teenager. He has also
had a very limited education up to Year 6 level according to his pre-sentence report. He is a taulealea in his family and as such
attends to the normal duties in relation to the family plantation etc. He is described by his relatives as quiet and hardworking.
On this particular occasion he had with his brother consumed a large bottle of vodka and a quantity of beer. A substantial quantity
of alcohol by any measure. After that, he went home and committed this offending. Whatever little judgment he had was obviously
impaired by his condition.
- Both defendants not surprisingly have clean police records. The family of the female defendant has paid a large village fine of five
(5) beasts and $5,000. The male defendant was unable to pay his fine which was comparable and he has been banished by his village.
- The circumstances of this matter are in my assessment exceptional. This is a case of one-off offending. At the end of the day by
physically mature but intellectually challenged adults. The act consisted of one count of consensual intercourse. I am satisfied
from what I have seen and heard that they fully regret their decision they are remorseful and are unlikely to reoffend.
- O le sao lea o le tulaga o le lua mataupu, o iai se salamō i le lua mea na fai pe leai Lilo? (Defendant said he is remorseful).
E te toe faia se mea faapea? (Defendant apologized and said he will never do this again). Faafefea oe tina, o lena e te malamalama
e leaga lau mea na fai a? (Defendant said yes). E sese lau mea na fai. E te toe faia se mea faapea pe leai? (Defendant said she
will never do this again).
- Aua le toe faia se mea faapea. I lalo o le tulafono e mafai ona ave oulua i le falepuipui i le asō mo se vaitaimi e le silia
i le 20 tausaga. E fai a sina matuia o le solitulafono lea na lua faia. Atonu ua sasi foi le lua faaiuga i le mea lenei, ae mafai
ona tuu atu le avanoa ia oulua e faasao ai oulua mai le falepuipui ae aua nei toe faia e seisi o oulua se mea fapaea. Ua lua malamalama?
(Defendants said yes).
- It would not in my view be just to send either of these defendants to prison for their behaviour. I am also mindful how imprisonment
could severely affect them given their respective intellectual capacities. The record should note I have given them an appropriate
warning of the consequences of any repetition of this kind of unsavoury behaviour. I am satisfied they fully understand the implications
and the message.
- Both defendants will accordingly be convicted and in respect of the mother Tuitapu Lilo she will be ordered to come up for sentence
within a period of 2 years on the following special conditions: the first is not to reoffend; she is to stay away from her co-defendant
son; she is to live only where approved by probation office. Would there be any other special conditions that the probation office
feel I should make part of the conditions of the sentence? (Probation officer said no). Report as directed by probation office as
and when required by the office. Le alii ofisa lea e alala mai o le ofisa faanofo vaavaaia, a maea fai se lua tala sei faamanino
atu tulaga ia i lau susuga Tuitapu, ua e malamalama? (Defendant said yes). E lua tausaga lea e te i lalo ai i le vaavaaiga a le
tulafono. E sa ona e toe solitulafono pe toe molia mai oe i le tulafono i totonu o le 2 tausaga. A toe aumai oe i luma o le faamasinoga
i totonu o le 2 tausaga lena ua toe laga loa le mataupu lea ma fai loa iai seisi faaiuga. Ma e mafai ona ou faia tu ia oe e toe
aumai loa oe, Tafaigata loa. Ua e malamalama? (Defendant said yes).
- In respect of the co-defendant Liu Lilo he will be placed on 12 months supervision. Special conditions of his supervision firstly
100 hours community service. Secondly no alcohol of any form during the period of supervision. Thirdly he is to stay away from
his mother the co-defendant. And he is to live only where approved by the probation office. He is further to attend any rehab programs
as directed by the office. In addition he is not to associate with any younger female siblings of his family without appropriate
parental or other supervision. Finally he is to obey all other instructions given him by the probation office during the period of
supervision. Ua e malamalama i le faaiuga o lau mataupu Liu? (Defendant said yes). Ia le alii ofisa foi lea a le ofisa faanofo
vaavaaia, e tatau ona fai ai sau tala. A iai se mea e te le malamalama ai atonu o lena e iai lau loia e mafai ona faamalamalama
atu ia oe. Ao le mea taua lava ia e usitai i tuutuuga lea ua tuu atu e le faamasinoga mo le taimi lea e te nofo vaavaaia ai. Aua
na o le tasi le tausaga lea e nofo vaavaaia ai. Usitai iai, aua a e le usitai iai e toe molia mai oe e le ofisa. A toe molia mai
foi oe e le ofisa ia o lena ua uma ona tau atu le faaiuga.
JUSTICE NELSON
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