Police v Sivai [2015] WSSC 57 (26 May 2015)

IN THE SUPREME COURT OF SAMOA
Police v Sivai [2015] WSSC 57

Case name:	Police v Sivai
Citation:	[2015] WSSC 57
Decision date:	26 May 2015 (sentence)
Parties:	Police (Prosecution) Tuilimu Sivai (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Courthouse, Mulinuu
Judge(s):	Justice Vaai
On appeal from:
Order:	Served 3 years imprisonment for each offence less any time spent in custody. Both sentences to be served concurrently.
Representation:	L Su’a-Mailo for prosecution A Su’a for defendant
Catchwords:	Sexual Intercourse with dependant family member – sexual demand –trust – retribution and deterrence - imprisonment term
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

TUILIMU SIVAI male of Sapulu Salelologa
Defendant

Counsel: L Su’a-Mailo for prosecution
A Su’a for defendant

Sentence: 26 May 2015

S E N T E N C E

1. The defendant a 65 year old married man pleaded guilty to two counts of having sexual intercourse with a dependant family member. The offences were committed between April and July 2014 at the defendant’s family home.
2. The victim was 16 years old at the time, a daughter of the defendant’s sister, who at the time of the offending was visiting relatives in Apia and leaving her daughter in the care of the defendant.
3. On both occasions, the victim was asleep when the defendant, who was at the time employed as a night security at the Salelologa market, went home, woke up the victim, told the victim to undress (which she did), sucked the victim’s breasts before he penetrated her vagina with his penis.
4. The defendant’s offending came to the attention of the police when on the 3^rd occasion the defendant attempted impose his sexual demand on the victim he was resisted by the victim who subsequently informed the police.

5. In September 2014 the defendant denied the charges against him and both informations were set down for hearing in January 2015, but on that date, before the hearing was due to commence, the defendant vacated his Not guilty plea.
6. For each offence the defendant is liable to imprisonment for a term not exceeding 14 years.
7. In considering sentences for sexual offending the primary consideration must be retribution and deterrence, to punish the offender, to deter the offender and other like minded people from offending and re-offending and to convey society’s denunciation of such conduct. This is particularly relevant in this case where the accused is 48 years older than the victim and whom the victim’s mother trusted to look after and take care of the victim. That trust has been shattered by the sexual lust of the defendant.
8. The Court endorses submissions by counsel for the prosecution that the increased maximum penalty from 7 to 14 years is an indicator that this prevalent offence is classified as a serious offence which warrant higher and sterner punishment.
9. The Court has before it a victim’s impact report. Like most other victims of sexual offending by family members, the victims cannot feel safe even amongst their own family members and within what they normally call homes.
10. For the defendants offending there are other victims like his 11 daughters who must be utterly ashamed and confused by his offending. As custodial sentence must be imposed.
11. Both counsels agreed that a starting point of 5 years imprisonment should be adopted. The court will adopt the same starting point.
12. For his delayed guilty plea I will deduct 12 months. I will deduct a further 6 months for the fine imposed by the village and a further 6 months for his previous good record.
13. He will serve 3 years imprisonment for each offence less any time spent in custody. Both sentences to be served concurrently.

JUSTICE VAAI