Police v Mafuto'a [2017] WSSC 108 (2 August 2017)

SUPREME COURT OF SAMOA
Police v Mafuto’a [2017] WSSC 108

Case name:	Police v Mafuto’a
Citation:	[2017] WSSC 108
Decision date:	02 August 2017
Parties:	POLICE (Prosecution) AND TO’A MAFUTO’A male. (Defendant)
Hearing date(s):	11, 12, 13 & 14 July 2017
File number(s):	1824/16
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	- In summary then the final term after applicable deductions for factors in your favour To’a is 7 years in prison. I consider that an appropriate penalty for your offending, you will be convicted and sentenced to 7 years in prison. Any remand in custody time to be deducted.
Representation:	R Masinalupe on behalf of L Su’a-Mailo for prosecution I Sapolu for defendant
Catchwords:	Sexual connection by way of unlawful sexual connection – intellectually disabled – sexual assault – vulnerability – intoxicated – mental age – aggravating factor – physical and mental condition – mentally challenged – deterrent sentences – imprisonment – mitigating factors – pre-sentence report – village punishment of banishment – lack of regret or remorse – despicable behaviour
Words and phrases:
Legislation cited:
Cases cited:	Police v Misipati [2017] WSSC 102 Lealaiauloto v Attorney General [2015] WSCA 2
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

TO’A MAFUTO’A male.
Defendant

Counsel:
R Masinalupe on behalf of L Su’a-Mailo for prosecution
I Sapolu for defendant

Hearing: 11, 12, 13 & 14 July 2017

Decision: 21 July 2017

Sentence: 02 August 2017

SENTENCE

1. By oral judgment dated 21 July 2017 the defendant was found guilty of committing sexual violation by way of unlawful sexual connection on the 32 year old complainant on 21 July 2016 in her village of birth. As per normal procedure the name and any other details that may serve to identify the complainant are suppressed from publication. Including on any form of social media such as Twitter, Facebook, Whatsapp etc.
2. At the time of the offending the complainant was intellectually disabled and her condition was summed up by her older sister in her testimony as follows.

“Ae lei taofia pe ma’i foi le tamaitai lea o L sa malosi lava le tino, malosi le savali, malosi foi le taumafa ma le inu. Ae sei vagana ai la lana tautala e tau le malamalama ai le toatele o tagata. Ae e malamalama foi o ia pe a fai atu iai se tala, e mafai foi ona talanoa mai ae le atoatoa lana talanoa pei ose talanoaga ma le tamaititi laititi.”

3. The complainant had according to the evidence very limited education, her sister thought up to Year 2 at the most and had never been referred to any specialist organization such as SENESE or Loto Taumafai for assistance. One cannot help but wonder how many other such disabled persons are out there in the community being cared for by their families unaided.
4. The acts of sexual assault established at trial were that the defendant kissed the complainant on the lips, undressed her, sucked her breasts and made genital to genital contact. Described by the complainants then 6 year old nephew who witnessed the assault as “faapipii la pi”. The young boy who was standing close by carrying on his back or “fafa” an even younger sibling also said the complainant was crying and tried to push the defendant away. And that the assault occurred in a bushy area where the defendant had taken the complainant. The complainant and her younger relatives had been sent by the complainants older sister to a village shop on an errand when they encountered the defendant on the road.
5. The defendant was walking home after a day selling his produce and by his own admission was drunk having consumed three large bottles of Vailima Povi a notoriously potent brand of Vailima beer. And one possibly deserving of closer examination by the Government as part of its current Law Reform initiatives. Too often do we as judges sitting in the courts of this country have to deal with offending that arises in the context of the excessive consumption of such alcohol.
6. In his evidence the defendant initially denied any knowledge of the complainants mental incapacities. But upon further questioning he admitted he was aware of her limitations. It was also clear he had lived in the same sub-village as the complainant all of his life and that he resides three properties away from the complainant.
7. The maximum penalty for the defendants offending is 14 years in prison. Prosecution have submitted an appropriate start point for sentencing is 10 years. They point to the special vulnerability of the complainant not only because of her limited mental capabilities but also because at the relevant time she was on a deserted road in the company of very young relatives. None of whom with the power or were-withall to resist a fully matured 59 year old intoxicated defendant. I agree these are factors that aggravate the offending.
8. The prosecution also cite pre-mediation as a further aggravating circumstance. But that I do not accept. The evidence does not indicate the defendant was lying in wait to ambush the complainant or that he had reason to believe the complainant and her younger relatives would be walking alone on the deserted road that evening. The offending is more of an opportunistic nature, the intoxicated defendant came upon the vulnerable group saw his chance and took it.
9. Prosecution also makes reference to the 27 year age gap between the parties. But I am of the view the difference in “mental age” is more significant than the difference in physical ages. The intellectual disability of the complainant is a significant but not overwhelming aggravating factor personal to the offending.
10. I also discard breach of trust as an aggravating factor as there is no evidence of any special relationship or familiarity between the complainant and the defendant. They are not immediate neighbours nor do they have any proven history of regular contact.
11. The victim impact report outlines how the offending is said to have impacted on the complainant in its reference to “headaches, nightmares and loss of appetite” post-offending. There was however no evidence of this adduced at trial or subsequently. I am hesitant to assign full weight to a report from the complainants sister on the condition of the complainant. And given the subsequent apparently unrelated medical events suffered by the complainant, it is almost impossible to conclude these symptoms and her current physical and mental condition can be traced back to her ordeal at the hands of the defendant. More specialized evidence much of it probably unavailable in this jurisdiction would be required before that can be given proper weight.
12. I do however accept as a well documented fact that sexual assaults influence long and short term behaviour and the future lives of those assaulted. And that such effect would be more keenly felt/experienced by the less mentally able.
13. It also aggravates the offending that the defendants sexual behaviour towards the complainant was witnessed by the complainants 6 year old nephew and younger sibling. And that this does not seem to have in any way deterred the defendant from nevertheless proceeding. His response according to the nephews evidence was to say to the complainant when it was over “toe fai taeao”. An indication of lack of remorse or even appreciation of the impact of what he had done. Especially in front of innocent children, something I have no doubt at least the 6 year old will always remember.
14. In sentencing an offender last month on a charge of unlawful sexual connection by a 44 year old defendant on a 17 year old severely intellectually disabled female in Police v Misipati [2017] WSSC 102 I noted the following:

“The vulnerable in our society require special protection especially the mentally challenged. Too often they are ignored and their plight is not fully recognized diagnosed or addressed. The great Mahatma Gandhi said: “A nations greatness is measured by how it treats its weakest members.” Hubert H. Humphrey a Vice-President of the United States put the matter in this way “The moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; and those who are in the shadows of life, the sick, the needy and the handicapped.”

15. I went on to make certain comments about the Mental Health Unit and concluded by saying:

“The court must also play its part and in my respectful view, should not hesitate to issue deterrent sentences of imprisonment against offenders who take advantage of the weak and vulnerable. In an effort to extend to them some measure of protection against those who would prey upon them.”

I reiterate those views and propose to follow a similar approach in the present matter.

16. Paying due regard to the purposes and principles laid down by Parliament in the Sentencing Act 2016 in particular sections 5, 6 and 7 thereof, highlighting section7 (1) (g) thereof which provides that the court must take into account as an aggravating factor “that the victim was particularly vulnerable because of his or her age or health (which I interpret to include mental health) or because of any other factor known to the defendant.”
17. Having regard to that and all the relevant circumstances, I start sentencing in your matter To’a at 8 years in prison. As for deductions for mitigating factors you are entitled to some deduction to reflect your clean criminal record and good background of service to your family. I ignore the suggestion that you have engaged in this sort of conduct before because there has been no reliable evidence adduced concerning that. I will treat you as having a clean criminal record.
18. But in relation to your character I make the observation that your pre-sentence report is unusual in some respects. Firstly there is no character reference from the pastor of your village of birth and home. Only a reference from a pastor at Vaitele but the documents indicate he is your first cousin. As well as a letter from a couple you have known from church only for the period you have resided at Vaitele which is comparatively recent. A reference from the pastor of your home village where you have according to you lived all your life would have carried far more weight.
19. The only other reference is from your village mayor “sui o le nuu” but reading it carefully, it is not really a reference. It does not speak about your good and law abiding character or activities in the village you grew up in and are now a matai of. It only serves to confirm the village punishment of banishment of you for your offending. As character references go these attachments to your pre-sentence report are of minimal value. The court is really only left with what your daughter and relatives have told the probation office, none of which has been independently verified or been able to be confirmed. This only serves to reinforce the value of character references attached to pre-sentence reports. Just in case people think we do not read them.
20. I cannot in these circumstances therefore give you a full deduction for previous good character. A half deduction of 3 months only will be allowed for your clean record and previous character. Deducting that from the start point for sentence, leaves a balance of 7¾ years.
21. Your banishment by your village is a traditional and appropriate punishment and is required to be taken into account. I accord to you the usual deduction for that penalty of 6 months, leaves a balance of 7¼ years.
22. Your counsel has urged me to also take into consideration the customary reconciliation in this matter. And to this end and pursuant to her request, I heard from a close neighbour of yours and an obvious friend conformation of the reconciliation effected with the victims mother. Wherein the mother accepted the apology tendered by members of your family.
23. My problem with that is two-fold. There is no evidence you played any part in that reconciliation either actively or because you were not permitted by your bail conditions and your banishment to return to the village, whether you made a contribution to the adornments that normally accompany such a traditional apology. Secondly and perhaps more significantly To’a as recorded on page 2 of the pre-sentence report you “remains adamant of your innocence”. That shows a complete lack of regret or remorse and you have given no instructions to your counsel even at this stage to express on your behalf acceptance of responsibility for what you did or remorse therefore.
24. Notwithstanding all that, the customary process of reconciliation with the victims family and forgiveness by them is in my view important in our culture. It is an essential part of our social fabric as Samoans. It is necessary for family harmony and the peace order and good governance of villages. Debate on the value the court should accord to this process which does not necessarily involve the defendant and in this case did not, remains open.
25. But for your particular matter I will make a 3 month deduction in recognition of the efforts of your family to apologise to the victims family for your despicable behaviour and for the harm you have caused. That also accords recognition to the forgiving spirit of the victims family, in particular the victims mother. As well as acknowledges that at least your family know how to behave.
26. The final submission of your lawyer was a deduction to reflect your onerous bail conditions and compliance with those conditions. This presumably is based on Lealaiauloto v Attorney General [2015] WSCA 2 where the Court of Appeal at paragraphs 13 and 14 allowed a deduction for lengthy periods of bail which required a defendant to live away from his village of residence for some sixteen (16) months. That case however must be distinguished from the present one. There the incident occurred in December 2012 and after appeals and a re-trial, final judgment was only pronounced some three years later in April 2015. For all that time the defendant was required to live away from his village as part of his bail conditions.
27. That is not the case here. The offending in this matter occurred 21 July last year and judgment is being pronounced today a little over 12 months later. Furthermore your banishment means you could not have returned to your village in any event. Even if that were not a bail condition you could not return to your village until such time as it in its discretion decides otherwise. And agrees to “fa’aa’e” or reinstate you as a matai of the village. The only onerous bail condition I can see you were required to comply with therefore was reporting to the police for about one year. A mitigatory deduction for such a factor has never been previously allowed and I see no reason for an exception to be made here.
28. In summary then the final term after applicable deductions for factors in your favour To’a is 7 years in prison. I consider that an appropriate penalty for your offending, you will be convicted and sentenced to 7 years in prison. Any remand in custody time to be deducted.

JUSTICE NELSON