Police v Tuifao [2015] WSSC 267 (3 August 2015)

SUPREME COURT OF SAMOA
Police v Tuifao [2015] WSSC 267

Case name:	Police v Tuifao
Citation:	[2015] WSSC 267
Decision date:	03 August 2015
Parties:	Police (prosecution) v Maselino Fenunuti Tuifao, male of Faleseela Lefaga
Hearing date(s):
File number(s):	S1827/15 and S1828/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Ema Aitken
On appeal from:
Order:	1.On the charge of indecently assaulting your step-daughter, you are convicted and sentenced to a term of two years and four months’ imprisonment. 2.In respect of the assault against your wife, if that were the only matter before the Court you would likely be given the opportunity to attend a rehabilitative program and thereby avoid a term of imprisonment. But because you are sentenced to a term of imprisonment on the charge of indecent assault, in respect of assaulting your wife, there will be an additional sentence of two months’imprisonment to reflect the seriousness of that offending. That is a total sentence of two and a half years’ imprisonment. Time served can be deducted.
Representation:	B Lo Tam for the prosecution Defendant appears in person
Catchwords:	Assault – indecent assaulting step daughter
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

Maselino Fenunuti Tuifao,male of Faleseela Lefaga.
Defendant

Counsel: B Lo Tam for the Prosecution

Defendant appears in person

Sentence: 3 August 2015

Oral Sentence of Justice E M Aitken

1. Mr Fenunuti, you pleaded guilty to four charges when you appeared before the Chief Justice. However, two of those charges are now withdrawn and your plea of guilty remains in respect of the charge of assaulting your wife on 26 May and indecently assaulting your step-daughter between 30 November and 01 January. You appear now for sentence in respect of those two charges.
2. Indecent assault on a 12 to 16 year old dependent child is a serious offence and the maximum penalty the Court can impose is 14years’ imprisonment. Assaulting your wife is also a serious charge; it carries a maximum of one year imprisonment.
3. You maintain a denial to indecently assaulting your step-daughter but I sentence you on the basis of your plea of guilty, the statement made by your step-daughter to the Police at the time and your response during your caution statement.
4. As to the facts, your step-daughter was visiting her mother on the night of this offence, she was 12 and you were 39 at the time. You were then married to her mother. You came home intoxicated at about five o’clock in the morning, lifted up the mosquito net and got into the bed beside the victim.

5. You touched her breasts and sucked on them during which time she cried quietly to herself. It is not clear to me when she complained to her mother but it is likely to have not been for some time because on 26 May, you then assaulted her mother, your wife. You had first hit your son across the head with a stick. When she asked you why you did that, you started punching her in the face and back.
6. In terms on the effect on your 12 year old step-daughter, she was angry and upset about what happened and she got a beating from her mother also. I understand she has returned to live with her father and, maybe because of what you did, she and her mother now do not have a good relationship. Your wife tells the Court that she is fearful of you, scared of you at times and angry with you for your conduct towards her. She said you have not apologised to her and she is particularly upset that you hit her infront of your son.
7. The most serious offence however is the indecent assault and a term of imprisonment is inevitable. Men who indecently assault their children and
step-children can expect to go to prison; it is as simple as that. The community of Samoa is concerned at the rate of sexual offending by fathers or step-father’s against children and step-children. Children are entitled to protection and should feel and be safe in their own homes and in their own beds, and your offending against your step-daughter is a very serious breach of trust that your family, and society generally, place in you.
8. This crime criminalizes conduct against dependent children or in other words it recognizes the obligation to protect. Not only have you breached the trust but she was only twelve years old at the time. You were 45, that is a 33 year age difference and while she does not express (in the victim impact statement) any evidence of long term emotional harm, it is highly likely on the evidence known to the Court that she may well suffer some serious emotional harm in the future as she gets older. The purpose of sentencing you for this behaviour is to denounce your conduct and to protect the victim at least in the shorter term.
9. The Attorney General submits that a starting point of four years imprisonment is appropriate and I agree. That is just over 25% of the maximum penalty and it reflects the fact that the victim was at the lowest end of the age range for this offending.
10. In terms of your personal consequences, there are matters that permit me to reduce the penalty from that starting point of four years.
11. You are a first offender. Prior to this behavior you had a good character that entitles you to some credit. Unfortunately, you have chosen not to apologise to your wife or your step-daughter’s family and while you expressed your remorse to the Court for the conduct in respect of your wife, you continue to maintain that you have done no wrong in respect of your step-daughter.
12. For your good character, I deduct eight months off the sentence reducing it to one of 40 months but the most significant credit comes from your early plea of guilty. Although I am concerned that you maintain a denial in respect of your
step-daughter, I intend to reduce the sentence by further 12 months in respect of your plea of guilty. On the charge of indecently assaulting your step-daughter, you are convicted and sentenced to a term of two years and four months’ imprisonment.
13. In respect of the assault against your wife, if that were the only matter before the Court you would likely be given the opportunity to attend a rehabilitative program and thereby avoid a term of imprisonment. But because you are sentenced to a term of imprisonment on the charge of indecent assault, in respect of assaulting your wife, there will be an additional sentence of two months’imprisonment to reflect the seriousness of that offending. That is a total sentence of two and a half years’ imprisonment. Time served can be deducted.

_____________________

JUSTICE E M AITKEN