Police v Fili [2015] WSSC 37 (7 April 2015)

SUPREME COURT OF SAMOA
Police v Fili [2015] WSSC 37

Case name:	Police v Fili
Citation:	[2015] WSSC 37
Decision date:	7 April 2015
Parties:	POLICE (prosecution) v TAPUTU SIAA FILI (accused)
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Convicted and sentenced to 2 years imprisonment. - Any time that he has spent in custody pending the outcome of this matter is to be deducted from that sentence.
Representation:	L Sua-Mailo for prosecution F E Niumata for accused
Catchwords:	Attempted sexual violation – maximum penalty – aggravating and mitigating features – premeditation – age disparity – impact of offending – breach of trust – vulnerability of the victim – pleaded guilty - sentence
Words and phrases:
Legislation cited:	Crimes Act 2013,s.53 (1)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Prosecution

AND

TAPUTU SIAA FILI male of Puleia in Savaii
Accused

Counsel:
L Sua-Mailo for prosecution
F E Niumata for accused

Sentence: 7 April 2015

S E N T E N C E

The charge

1. The accused Taputu Siaa Fili appears for sentence on one charge of attempted sexual violation, contrary to s.53 (1) of the Crimes Act 2013, which carries a maximum penalty of 14 years imprisonment.
2. Initially, the accused was charged with nine charges to which he pleaded not guilty. After eight of those charges were withdrawn on the morning of the trial and upon advice from his counsel, the accused withdrew his not guilty plea to the remaining charge of attempted sexual violation and entered a guilty plea.

The offending

3. The accused is married to the victim’s paternal grandmother but it seems from the pre-sentence report that the father of the victim’s father is not the accused but someone else. The accused would therefore be the victim’s step paternal grandfather. At the time of this offending, the victim was visiting the family of her grandmother and the accused.
4. On the night of this incident between 1 January 2014 and 31 August 2014, the victim’s grandmother who was in the shower called out to the victim to bring her towel in the bedroom. When the victim entered the bedroom, the accused followed and locked the door of the bedroom. He then approached the victim, pulled off her lavalava, and pushed her against a pile of suitcases. He then proceeded to remove her shorts. At that moment, the victim’s grandmother knocked on the door of the bedroom and called out to the victim where was her towel. That made the accused to stop what he was doing. The victim’s grandmother then moved over to the window of the bedroom and lifted the curtain. Upon seeing both the victim and the accused inside the bedroom, she called out what was going on. The accused then moved away from the victim. When later questioned by her grandmother, the victim told her that the accused was trying to force her.

The accused

5. The accused is aged 71 years. He is married with six children. He has a number of grandchildren. He still cultivates his plantation and goes fishing when he is able to in order to support his family. He and his wife’s main source of income is their children overseas and in Samoa.
6. The accused is a first offender. The testimonials from his daughter in Samoa and his church show that he had been a person of good character prior to the commission of this offence. He has also reconciled with the victim and her mother.
7. As a consequence of this offending, the accused has been banished from his village of Puleia in Savaii and is now residing in the Apia urban area.
8. The accused has also pleaded guilty to the charge of attempted sexual violation when the other eight charges were withdrawn by the prosecution on the morning of the trial. It appears, however, from the pre-sentence report that the accused is still maintaining that he is innocent. Counsel who has very ably represented the accused said that this is in relation to the charges that have been withdrawn by the prosecution. But even if that is so, there is nothing in the pre-sentence report to show that the accused at any time admitted his guilt to the probation service in relation to the charge on which he is now appearing for sentence.

The victim

9. The victim is aged 14 years and still attending school. Even though she victim did not suffer any physical harm, she has been psychologically affected by what the accused did to her. She is now angry at the accused for what she did to her and does not want to see him ever again. She also feels hurt as she loves her grandmother who is already weak and aging.

Aggravating features relating to the offending

(a) Premeditation

10. There was an element of premeditation in this case though at a low level. There was also an element of opportunism in this offending. The accused must have known that his wife was in the shower. So when he saw the victim went into the bedroom to get the towel for her grandmother, he entered the bedroom and locked the door.

(b) Breach of trust

11. Even though there is no blood connection between the accused and the victim, the accused is married to the victim’s paternal grandmother and the victim would understandably expect to feel safe in the house of her grandmother and the accused when she visited them.

(c) Age disparity

12. The age disparity between the victim and the accused is 57 years. The victim is aged 14 years and the accused is aged 71 years.

(d) Vulnerability of victim

13. The victim was in a vulnerable situation given her young age and because her grandmother and the accused were in a position of authority over her during the time she visited and stayed with them.

(e) Impact of offending

14. As a consequence of the offending, the victim now feels angry at the accused. She also feels hurt because of her love for her aging grandmother.

Mitigating features relating to the offender

(a) Previous good character

15. At age 71 years, the accused is a first offender and had been a person of good character prior to the commission of this offence. He still cultivates the land and goes fishing when he is able to in order to provide for his family.

(b) Banishment

16. The accused has already suffered punishment by being banished from his village because of this offence.

(c) Guilty plea

17. The accused pleaded guilty to the charge against him though it was somewhat belated. This has saved the Court and the prosecution time and resources.

Discussion

18. In terms of the aggravating features relating to the offending, I accept the submissions of counsel for the accused that overall this offending is towards the low end of the scale. There was no physical invasion of the victim’s body by kissing, fondling of the breasts, or digital penetration. As a result, the victim sustained no physical harm. The only psychological effects of the offending on the victim are the anger she now feels towards the accused and the hurt she feels because of her love for her grandmother. The degree of planning and premeditation is also towards the low end of the scale as the accused did not trick or lure the victim into the bedroom or a secluded area or create circumstances of isolation. The offending was in a sense opportunistic in that the accused thought he had an opportunity with the victim when he saw her going into the bedroom while his wife was in the shower. It was also in a sense naïve of the accused to attempt to sexually violate the victim when his wife was inside the house in the shower waiting for the victim to bring her towel inside the bedroom to her. He should have known that any delay on the part of the victim was likely to make his wife come to the bedroom to get her own towel and catch him in the act.
19. This is also not a case of prolonged sexual offending over a period of time but a single isolated incident. The level of the breach of trust is also not towards the high end of the scale. The victim was not a permanent member of the accused’s household who is dependent on the accused and his wife. The victim was merely visiting her natural father’s family when this incident happened to her.
20. Having said all of that, I still have to bear in mind the submissions by counsel for the prosecution regarding the vulnerability of the victim, the level of breach of trust involved, the element of premeditation involved, the impact of the offending, and the substantial age disparity between the victim and the accused.
21. Having considered the aggravating features relating to the offending, I will take 4 years as the starting point for sentence. I will deduct one year for previous good character given that at age 71 years this is the accused’s first offence. That leaves 3 years. I will deduct 8 months for the banishment. That leaves 2 years and 4 months. I will then deduct 15% or 4 months for the accused’s belated guilty plea. That leaves 2 years.

Result

22. The accused is convicted and sentenced to 2 years imprisonment. Any time that he has spent in custody pending the outcome of this matter is to be deducted from that sentence.

Honourable Chief Justice