Police v Moana'i [2016] WSSC 154 (21 March 2016)

IN THE SUPREME COURT OF SAMOA
Police v Moana’i [2016] WSSC 154

Case name:	Police v Moana’i
Citation:	[2016] WSSC 154
Decision date:	21 March 2016
Parties:	POLICE (Prosecution) FEALA MOANA’I male of Nofoalii. (Defendant)
Hearing date(s):	-
File number(s):	S2020/14
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:
Representation:	O Tagaloa for prosecution D Kerslake for defendant
Catchwords:	-
Words and phrases:
Legislation cited:
Cases cited:	Police v Leatuvao [2015] WSSC 116 Police v Feagaiga (unreported judgment of 14 April 2014)
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

FEALA MOANA’I male of Nofoalii.
Defendant

Counsel: O Tagaloa for prosecution
D Kerslake for defendant

Sentence: 21 March 2016

SENTENCE

1. The defendant has pleaded guilty to a charge that at Nofoalii on the 04^th of July 2014 he did have unlawful sexual connection with the complainant a female of 15 years of age. The National Prosecution summary of facts which does not appear in dispute says the defendant is a 30 year old male of the village of Nofoalii. He is single, is a “faifa’atoaga” (planter) and looks after his family as is normal for a young Samoan adult male. The complainant girl is a 15 year old female and other details concerning her identity are suppressed from publication as is the normal situation of young victims of sexual offending. She was born and raised in Australia and does not live in Samoa. She was here with her family for a church conference and were staying at Leulumoega-tuai.
2. On the day in question 04 July 2014 at about 4:00 am in the morning, after going to the bathroom she wondered off from the house where they were staying at Leulumoega-tuai and got lost. She ended up in the neighbouring village of Nofoalii at about 7:30 am. She went past a white house and a man the defendant came out of the house. He waved at her to come over. She did and the defendant invited her into his house. She entered the house where a conversation occurred between her and the defendant. The defendant then took her by the hand into a room, took off her lavalava and touched her private part. The summary of facts says he also performed oral sex upon her followed by sexual intercourse. Afterwards the defendant took the victim to another house and started to kiss her again. However the victim stood up and told the defendant she wanted to go home.
3. The summary goes on to say the defendant then took the victim back to the first house where a couple saw the victim. And because she looked fatigued they started to question her about where she was from and her name. When they could not obtain any satisfactory answers, they took her to Leulumoega Hospital. Upon arrival at the hospital the police also arrived as the police and her family had been searching for the victim. When she got home the victim told the police and her mother what happened to her and identified the place where the defendant had intercourse with her.
4. On the same day the victim was examined by a doctor at the Tupua Tamasese Meaole Hospital. The Doctor noted “patient appears to be in a catatonic state with a flat effect when answering questions although she was orientated to time and place.” Enquiries by the police eventually identified the defendant as the perpetrator leading to this court proceeding.
5. In fact the victim is not an ordinary 15 year old girl. A medical report upon her is before the court from health authorities in Australia specifically from Doctor Jean Starling, a Child and Adolescent Psychiatrist and Senior Clinical Lecturer in the Discipline of Psychiatry, Sydney Medical School in Sydney. Dr Starling is also the Director of the relevant unit at the Concord Centre for Mental Health in New South Wales, Australia.
6. The report states the young girl was first admitted to their Unit between 27 February and 15 April 2014 which was prior to this trip to Samoa. She was diagnosed with severe depression with thoughts of suicide and she had auditory hallucinations, in order words she heard voices telling her to hurt herself. Obviously a young lady with mental issues. But the report says she made a good recovery with therapy and medication and was discharged home to her family. The dates indicate that after this discharge was when her family came to Samoa for the Church Conference in July 2014. That is when the incident involving the defendant occurred.
7. The report goes on to note that on their return to Australia the victim was again admitted to the Mental Health Center from 10 July to 30 September 2014. The report notes that she was again diagnosed with depression but this time it was more difficult to treat. Says she was actively trying to commit suicide and had symptoms of post traumatic stress disorder attributable to the alleged sexual assault that occurred in Samoa. The report goes on to note two further admissions for the young girl both indicating that her condition was deteriorating. It says that in summary she suffered from schizophrenia which is a severe mental illness with psychotic symptoms meaning that she is sometimes out of touch with reality and that she hears voices ordering her to hurt herself because she is a worthless person.
8. It is clear from this report from a qualified psychiatric expert the victim was impacted by the defendants sexual assault. It caused a relapse of her condition and possibly precipitated her current mental problems. To this extent the court accepts that the victims condition is closer to that of the victim in Police v Leatuvao [2015] WSSC 116 than in the case of Police v Feagaiga (unreported judgment of 14 April 2014) relied on by defence counsel.
9. But I do keep in mind that in the present case there is only one count facing the defendant whereas Leatuvao involved multiple victims and multiple counts. However I also take into account that this is a case of a young girl in a strange country wandering around in a strange village at 7:30 in the morning. Indications are she was not on the main road according to the defendants statement given to the police. She was on an “auala e alu i uta,” in other words she was on either a side road or a plantation road of the village.
10. She was obviously not only lost but in an area where there would be fewer people and houses. She was obviously disorientated which is why she ended up in the neighbouring village of Nofoalii. She was probably confused, she was definitely unsure of where she was and as to her surroundings. This is the young girl that the defendant spotted from his house. This is the young girl the defendant waved over resulting in her entering the defendants house. Given her situation and condition I draw the inference that the conversation between her and the defendant which was inserted into the summary of facts at defence counsels insistence was for the purpose of coaxing this young girl into having sex.
11. I further infer it would have been quickly apparent to the defendant perhaps even outside the house that the victim was not of a normal state of mind. What he did was to deliberately take advantage of her vulnerability and situation. He saw an opportunity and literally took it by the hand. In his statement he said he led her by the hand into one of the rooms of the house, showed her how to undress and then proceeded to have sex with her. Not knowing her name or where she came from or any details about her. Although he does refer in his statement to her telling him that she was ‘Carol’.
12. This is not a case of full and unreserved consent given by a normal 15 year old to a sexual intercourse by a man twice her age. I do not accept the defendant was as ignorant as he claims to be of the mental status and condition of this girl. The defendant knew exactly what he was doing. In his cautioned statement to the police he acknowledges inter alia what he did was wrong and a crime before God.
13. From the point of view of holding the defendant accountable for his actions, deterring him from future such conduct, sending the necessary message to others and denouncing his behaviour as unacceptable to society, imprisonment is the only appropriate penalty.
14. Ten (10) years is the maximum penalty set down by law for the offence you have pleaded guilty to. Considering all the circumstances of the matter in particular the vulnerability of the victim and the fact that she was a lost stranger from a foreign country in need of assistance, I start sentence at 8½ years. I deduct 2 years for your guilty plea because that has saved some of the limited resources and time of the Court and expresses to some degree your remorse. That leaves 6½ years.
15. You have a good pre-sentence report Feala. You have a clean criminal background and the report is supported by references from your faifeau and your pulenuu. To reflect those matters I deduct 6 months. That leaves a balance of 6 years imprisonment.
16. Your counsel has indicated that you are remorseful and that you wish to apologise to the girl and the family of the girl. But you are unable to do that because they are in Australia. That however does not stop you from making a written apology in any event or even making a personal apology to the court; you have chosen not to do that. There will be no further deduction from the period of imprisonment. You are convicted and sentenced to 6 years in prison for this matter.
17. After dialogue with defendants counsel, a further deduction of one year for the formal apology and reconciliation was made in the following terms:

Ia lelei Feala, e taua le tulaga lea ua e saunoa iai ma e taua foi le tusi lea ua fa’ata’atia mai e le susuga i le alii loia i luma o le Fa’amasinoga e fa’amanino mai ai ua maea ona ui auala e masani ona fai aua e le o tatou o ni papalagi o tatou o tagata Samoa e iai a tatou tu ma aganuu. E fiafia la le Fa’amasinoga e fa’afofoga atu ua maea ona fa’atino lea vaega. Peita’i e le mafai ona fai ma alofaga o le solitulafono ona e fai si matuiā o le solitulafono. A o le fa’aiuga lea o le a iai o le a toese ai leisi tausaga e tasi (1) mai le paleni e 6 tausaga lea sa taunuu iai le fa’aiuga a le Fa’amasinoga totoe ai le paleni e 5 tausaga. O lou fa’asalaga la mo lenei mataupu ma lenei solitulafono Feala ua fa’amaonia lau solitulafono ma tuu atu oe i le toese mo se vaitaimi e le silia i le 5 tausaga. Poloai foi e le Fa’amasinoga a fa’apea sa iai se taimi sa e nofo taofia e fa’atalitali ai le fa’aiuga o le mataupu lenei, e tatau ona toese mai le 5 tausaga lea e fai ma ou fa’asalaga mo le mataupu lenei.

JUSTICE NELSON