Police v Petelo [2016] WSSC 44 (10 February 2016)

SUPREME COURT OF SAMOA
Police v Petelo [2016] WSSC 44

Case name:	Police v Petelo
Citation:	[2016] WSSC 44
Decision date:	10 February 2016
Parties:	POLICE v POROTESANO PETELO male of Papa, Sataua, and Leauvaa and FAAPAIA KAMALA male of Leauvaa.
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:	- The accused Porotesano is convicted and sentenced to 10 months community supervision. Amongst the conditions of his supervision he is to perform 40 hours community service, and the probation service may refer him to an appropriate AOD programme facilitated by the Alcohol and Drugs Court team. This is because Porotesano seems to have had an alcohol and drugs problem and I am not confident that that problem has been totally remedied. - The accused Faapaia is convicted and sentenced to 12 months community service on the condition that he is to perform 50 hours community service together with the usual conditions imposed by the probation service.
Representation:	P Chang for prosecution Accused in person
Catchwords:
Words and phrases:	having sexual connection with a young person between the age of 12 years and 16 years – maximum penalty – early guilty pleas – aggravating and mitigating factors - sentence
Legislation cited:	Crimes Act 2013, s.59 (1)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

POROTESANO PETELO male of Papa, Sataua, and Leauvaa and FAAPAIA KAMALA male of Leauvaa.

Accused

Counsel:
P Chang for prosecution
Accused in person

Sentence: 10 February 2016

S E N T E N C E

The charges

1. The accused Porotesano Petelo who is a 21 year old male of Papa, Sataua, and Leauvaa and the accused Faapaia Kamala who is a 19 year old male of Leauvaa appear for sentence on two individual charges of having sexual connection with a young person between the age of 12 years and 16 years, contrary to s.59 (1) of the Crimes Act 2013, each of which carries a maximum penalty of 10 years imprisonment. Each of the accused pleaded guilty to the charge against him at the earliest opportunity.

The offending

2. The victim is now 16 years old but was 15 years and 11 months old at the time of the offending. Her real village is Mulifanua but at the time of the offending was staying with her older sister at the family of her sister’s husband at Leauvaa.
3. As shown from the prosecution’s statement of facts admitted by the accused, on 12 November 2015 the victim had an argument with her sister and she wanted to run away to her family in Mulifanua. So in the late evening the victim left her sister’s house to return to her family in Mulifanua.
4. Around that time, the two accused had settled down for the evening in a hut (faleo’o) of the family of the accused Faapaia in Leauvaa. At about midnight, the accused Porotesano made his way to a nearby shop to make a call on his cell phone. Faapaia was then asleep. While Porotesano was in front of the shop he saw the victim walking towards the shop. Porotesano asked the victim as to where she had been as her family had been looking for her and the victim replied she had been hiding until daylight in the morning then she will go to her family.
5. Porotesano then asked the victim if she wanted to go with him to an abandoned house in the adjoining village of Tuanai. The victim agreed and went with Porotesano. When they arrived at the abandoned house, they talked and lay on the bed that was in the house. Porotesano then hugged the victim and began kissing her and sucking her breasts. They then had sexual intercourse. Afterwards, they continued to lie in bed talking. Porotesano then said to the victim that he would go and tell Faapaia to come and stay with them at the abandoned house. Porotesano then left the victim at the abandoned house and returned to the hut where Faapaia was sleeping. He woke up Faapaia and told him about the victim and Faapaia agreed to go with him to the abandoned house. When they arrived at the abandoned house, the victim had fallen asleep. Porotesano woke up the victim and told her to stay with Faapaia whilst he goes to make a phone call. Porotesano then returned and slept at the hut at Leauvaa. He did not go back to Faapaia and the victim.
6. After Porotesano left, Faapaia went over and sat on the bed next to the victim and talked with her for a short while. Faapaia asked the victim if she wanted to have sexual intercourse with him and the victim agreed. They then had sexual intercourse.
7. On 16 November 2015 Faapaia was apprehended by the police and taken to the Afega police post where he was interviewed by the police and he made a full admission to having sexual intercourse with the victim. Porotesano was apprehended by the police on 17 November 2015 and also taken to the Afega police post where he made a full admission to having sexual intercourse with the victim.

The accused

8. The accused Porotesano, as it appears from his pre-sentence report, grew up in his village of Papa, Sataua, where he attended primary school. He then attended secondary school at Amoa College and then the Samoa Maritime School in Apia in 2015. At the time of this offending he was attending the Samoa Maritime School and staying with the family of his sister’s husband at Leauvaa. His education has been put on hold pending the outcome of this matter.
9. Porotesano is a first offender. The oral testimonial given by his sister to the probation service shows him to be a very responsible, hardworking and humble person and this offending is out of character. The testimonial from the pastor of this accused’s church at Papa, Sataua, shows that the accused used to drink alcohol, and smoked cigarettes and marijuana. Since this offending, Porotesano has stayed in his village of Papa, Sataua, he spends most of his time with his village pastor. The pastor says in his testimonial that Porotesano has stopped drinking and smoking and is now a different person.
10. The pulenu’u of Leauvaa told the probation service that the village council of Leauvaa has penalised Porotesano $300 and banned him from Leauvaa because of this offending.
11. The accused Faapaia is single. He is also unemployed but stays home and assists his family with their plantation and domestic chores. He has a previous conviction on 11 July 2014 for a similar offence when he was given a suspended sentence of 12 months. His parents have told the probation service that despite their son’s previous conviction for a similar offence, he is still a trustworthy and loving person. The written testimonial from Faapaia’s pastor shows him as a good and obedient person with a pleasant personality. He also attends church service regularly and is supportive of his pastor when required to do work for his pastor. The written testimonial from the pulenuu of Leauvaa shows Faapaia as a good, honest and hardworking person who is supportive of the activities of his village. He is also presently looking after his sick mother.
12. Faapaia has also apologised to the victim’s family and his apology was accepted. His family has also reconciled with the victim’s family. Furthermore, Faapaia has been penalised by the village of Leauvaa and fined $300 which he has already paid.
13. Faapaia told the probation service that he and Porotesano are good friends. On the night of this incident he was sleeping in a hut when Porotesano woke him up and told him to go to the victim who was alone at the abandoned house at Tuanai. He went to that house and the present offence was committed.

The aggravating and mitigating features

14. In the relation to the accused Porotesano, there is one aggravating feature relating to his offending, that is, it was him who got the accused Faapaia involved in this offending. He went and woke up Faapaia who was asleep and told him about the victim who was at the abandoned house in Tuanai. If it was not for Porotesano, the accused Faapaia would not have committed this offence.
15. In relation to Porotesano as offender, the mitigating features are the punishment already imposed on him by the village council of Leauvaa and his plea of guilty to the charge against him at the earliest opportunity. He is also relatively young and attending the Samoa Maritime School. His education is presently on hold pending the outcome of this matter.
16. In relation to the accused Faapaia, there is no aggravating feature relating to his offending. But there is an aggravating feature relating to him as offender and that is, his previous conviction in July 2014 for a similar offence when he was given a suspended sentence of 12 months.
17. The mitigating features relating to Faapaia as offender are his relatively young age of 19 years and his guilty plea at the earliest opportunity. The testimonials given on his behalf show that he is a person of good character with a weakness for sex as shown from his previous conviction and his involvement in the present offending. He has also been penalised with a fine of $300 by his village council and he has paid his fine.

Discussion

18. In respect of Porotesano given his relatively young age, the fact that he is still a student and first offender, the penalty imposed on him by the village council of Leauvaa, the fact that he has stopped drinking and smoking and his guilty plea, I have decided to impose on him a term of community supervision.
19. In respect of Faapaia given his young age, his previous good character with a weakness for sex, the punishment already imposed on him by his village council and his early guilty plea, I have decided to give him another chance to redeem himself while his future is still before him. But I must emphasise to Faapaia that this may be the last chance the Court will give him. If he reoffends again then imprisonment will be a real likelihood for him.

Result

20. The accused Porotesano is convicted and sentenced to 10 months community supervision. Amongst the conditions of his supervision he is to perform 40 hours community service, and the probation service may refer him to an appropriate AOD programme facilitated by the Alcohol and Drugs Court team. This is because Porotesano seems to have had an alcohol and drugs problem and I am not confident that that problem has been totally remedied.
21. The accused Faapaia is convicted and sentenced to 12 months community service on the condition that he is to perform 50 hours community service together with the usual conditions imposed by the probation service.

CHIEF JUSTICE