Police v Tuimauga [2016] WSSC 97 (13 June 2016)

SUPREME COURT OF SAMOA
Police v Tuimauga [2016] WSSC 97

Case name:	Police v Tuimauga
Citation:	[2016] WSSC 97
Decision date:	13 June 2016
Parties:	POLICE (prosecution) and FAALELEI TUIMAUGA aka LIZ TUIMAUGA, male of Vavau and Vaitele-uta (defendant)
Hearing date(s):	-
File number(s):	S3403/15, S3404/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE VAAI
On appeal from:
Order:	For both offences the accused is placed on Probation for 18 months. (a) He will do 50 hours of community work. (b) He will undergo counselling or any other programme as directed by the Probation Service. (c) He will, through the Probation Service, pay cost of prosecution of $600 tala, by monthly installment of $100 tala, first payment will be the 30th June 2016.
Representation:	L Su’a-Mailo for prosecution A Su’a for defendant
Catchwords:	Sexual connection – willing to partake – gravity of the offending – surrounding circumstances – non custodial sentence
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

FAALELEI TUIMAUGA aka LIZ TUIMAUGA male of Vavau and Vaitele-uta
Defendant

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

Sentence: 13 June 2016

S E N T E N C E

1. The accused a 37 year old male pleaded guilty to two counts of having sexual connection with two young boys in the early morning of the 20^th September 2015.
2. The summary of facts is not disputed. The two young boys described in the prosecution summary as victims were hanging out with some friends in their neighbourhood about 3 to 4am. The first victim is a 15 year old attending school in Year 10. The second victim is also 15 but not attending school.
3. Also in the same neighbourhood about the same time were the defendant and his group of friends. They were looking for a lost ATM card on the grass by the side of the road using their mobile phones. When the victims and their friends came by they were requested by the accused to help with their search for the ATM card. They did. But as they did so the second victim touched the accused’s buttocks, he also suggested that it was time for a pre-dawn fucking of the arse. He then asked the defendant if he was set and the accused said yes. Both victims and the accused walked to the nearby bushes.
   
4. The first victim and accused disappeared into the bush while the second victim waited smoking a cigarette. The first victim got himself undressed and sat on the ground when he got to the accused who was already naked. The accused then proceeded to suck the first victim’s penis. After he ejaculated, the first victim went away and the second one walked over to the accused, got himself undressed, sat on the ground and was initially masturbated by the accused before being sucked to ejaculation.
5. The following day the accused was reported to the police. He was interviewed, cautioned and charged.

The accused

6. A number of written testimonials attached to the pre-sentence report including one from his current employer. He is described as reliable, trustworthy, prompt, honest and competent worker. He has managed his journey for 37 years before being involved in a criminal offending, a very serious offending for which he is liable to 10 years imprisonment for each offence. Alcohol undoubtedly played a large part in his offending.
7. It must be said that although the young boys instigated the offending and were willing partners, it does not excuse the offending as the accused himself a ready and willing player who took advantage of the willingness of two immature youths to fulfill his own sexual desires.

Victims Impact Report

8. Before the Court, are the two victims impact reports prepared for the two young boys. The first victim said he was traumatized due to the incident, he is sad and he is always thinking about what the defendant did to him and he is angry because his sister and mother have never done something like this to him before.
9. The second victim who instigated the whole incident said virtually the same thing. I find it difficult to believe or give any credence to the victims’ impact report and the person who prepared them should have known them better and seek more information particularly from the parents. The victims could not be traumatised because obviously they have been in this game before. They roamed the street in the early hours of the morning in the company of others and one of them had no hesitation inviting the accused to anus penetration. And they willingly got themselves undressed and were willing to partake in the sexual activities.

Sentence

10. No harm could have been done to the so called victims. Harm had already been done before the accused’s offending. One can only wonder what parental control if any were given to these two young persons who were roaming the street inviting sex with a total stranger. Despite the gravity of the offending and the circumstances I am satisfied that a custodial sentence is not warrant.
11. For both offences the accused is placed on Probation for 18 months. He will do 50 hours of community work. He will undergo counselling or any other programme as directed by the Probation Service. He will, through the Probation Service, pay cost of prosecution of $600 tala, by monthly installment of $100 tala, first payment will be the 30^th June 2016.

JUSTICE VAAI