Police v Mekuri [2018] WSSC 23 (28 February 2018)

SUPREME COURT OF SAMOA
Police v Mekuri [2018] WSSC 23

Case name:	Police v Mekuri
Citation:	[2018] WSSC 23
Decision date:	28 February 2018
Parties:	POLICE (Prosecution) AMEPEROSI TOLOLI MEKURI @ FAINAELO TOLOLI @ KONESANE TOLOLI male of Falefa and Leauvaa. (Defendant)
Hearing date(s):	-
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	The final sentence then against you Ameperosi is 3 years and I am satisfied that properly reflects the criminality of your offending and the circumstances of the matter. You are convicted and sentenced to 3 years in prison and because this offence is different in time, circumstances and victim to the rape term you are serving this term must be served separate to your rape term. The offence the defendant has been convicted of is a registrable offence pursuant to section 6(1)(a) of the Sex Offenders Registration Act 2017 and means he should be now registered as a sex offender pursuant to that legislation. Particularly now that he has a record of two convictions for offences of a sexual nature within a span of 2 years. This is exactly the kind of offender that legislation is geared towards in an effort to prevent another young child or female falling prey to his actions.
Representation:	L Mamaia for prosecution Mr Amoa on behalf of T Atoa for defendant
Catchwords:	Sexual violation by way of unlawful sexual connection by sucking vagina – previous conviction – rape – suppression order – performed oral sex – admitted to the charge – change plea to guilty – young victim – position of authority and trust – strong deterrent message – Convention of the Rights of the Child - defenceless victim – aggravating factors – relationship of trust – sentencing start point – mitigating factors – victim impact report – remorse – criminality of offending – convicted and sentenced – Sex Offender Registration – registered as sex offender.
Words and phrases:
Legislation cited:	Sentencing Act 2016 Sex Offenders Registration Act 2017
Cases cited:	Police v Talaiilagi Ulusele (unreported 21 September 2017)
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

AMEPEROSI TOLOLI MEKURI @ FAINAELO TOLOLI @ KONESANE TOLOLI male of Falefa and Leauvaa.
Defendant

Counsel:
L Mamaia for prosecution
Mr Amoa on behalf of T Atoa for defendant

Sentence: 28 February 2018

SENTENCE

1. According to the uncontested summary of facts the defendant is a 36 year old male of Falefa but is currently serving a lengthy prison term at Vaiaata for rape. Because however the present offending pre-dated the rape, that previous conviction will not be held against him.
2. The defendant also has a previous conviction for assault in 2002 involving alcohol. But that conviction is over fifteen (15) years old and the penalty indicates it was probably of a relatively minor nature. I therefore do not propose to uplift any term of imprisonment imposed on the defendant for that previous conviction. The summary of facts also says the defendant is a married man with nine children.
3. The victim in this matter is his 14 year old niece who at the time was attending school and was aged 13 years. She was living with the defendant and his family. The usual suppression order will issue in regards to prohibiting publication of the details of this young girl.
4. On a night in March 2015, the victim and a female cousin plus two of the defendants children were asleep on one side of the family living room. The defendant and his wife were occupying one of the bedrooms of the house. Sometime during the night the defendant approached the victim while she was sleeping, lifted up her skirt, parted her legs, moved her panty aside and exposed her private part. He then performed oral sex on her private part resulting in the victim being roused from her sleep.
5. The victim sat up and saw the defendant walking away from her bed pretending to check on his two children sleeping on the floor. The matter was reported to the Apia Police and the defendant was interviewed by the Police. During cautioning he admitted to the charge against him. He told the police in a written statement -

“Ou te tautala i lo’u faamaoni e sa’o o a’u na tupu ai le mea lea. Sa ou alu atu i le po lea ma faaosoosoina foi a’u e le fili ma tiapolo ua mafua ai ona ou oo i le mea na moe ai le teineitiiti lea ma faatino ai uiga nei. Pau foi lea o la’u mea na fai na’o lo’u alu atu susu lana mea ae na ala loa o’u alu ese mai loa.”

6. As a result the defendant has been charged with sexual violation by way of unlawful sexual connection with the victim by sucking her vagina. An offence carrying a 14 years maximum penalty by law.
7. The defendant originally pleaded not guilty to the charge but subsequently changed his plea to guilty. That will be taken into consideration in his favour as it has avoided an unnecessary delay and the expense of a trial. More importantly it has meant the young victim does not have to appear and relive this event in front of a court room of strangers.
8. The law requires the defendant to be held accountable for his actions upon this young girl. And that his conduct in respect of his own niece should also be denounced. Furthermore his sentence should send a strong deterrent message to the defendant himself about sexual behaviour towards young girls. And a message to other males of the consequences of such offending.
9. Aggravating the offending was the vulnerability of the victim who was asleep at the time. Plus the fact that he was her uncle and she was living in the family as a young female relative and as such, he was in a position of authority and trust both of which he has abused. There is also the age difference between him and the victim of approximately 23 years. No doubt the defendant also planned his offending because he waited for the household to go to sleep before making his move.
10. It is also notable the offence occurred within the confines of the family home a place where young females are entitled to feel safe and protected. And the court has no doubt, notwithstanding what the mother says in the Victim Impact Report, that this offending has impacted on the young girl who was at the time only 13 years of age. The extent of that impact is hard to measure on the limited information available. But I have no doubt it did.
11. This country is party to the Convention of the Rights of the Child (“CRC”) and was one of its earliest signatories. That requires that the laws of this country should protect and safeguard young children especially young female children.
12. As the victim is under 18 years of age the court is also mindful of those factors specified in section 8(2)(a)(b) and (c) of the Sentencing Act 2016:

“8. Cases involving violence against, or neglect of, persons under 18 years - (2) The court must take into account the following aggravating factors to the extent that they are applicable in the case:

the defencelessness of the victim;

in relation to any harm resulting from the offence, any serious or long-term physical or psychological effect on the victim;

the magnitude of the breach of any relationship of trust between the victim and the defendant.”

13. The prosecution seeks a sentencing start point of 8 years in prison. Considering all the circumstances of this matter I believe that to be too high. There is no similarity of circumstances between this case and the Police v Talaiilagi Ulusele (unreported 21 September 2017) case that the prosecution are relying on. That was a far more serious case of sexual offending. I will start sentencing in this matter at 5 years in prison and from that deductions need to be made to take account of the mitigating factors in the defendants favour.
14. The first arises out of the Victim Impact Report which says according to the mother:

“O ia ma le tamā o le aiga ua leva ona la faamagalo i le o loo molia. Sa muai faatoese atu le o loo tulai ia laua o matua o le na aafia ae lei oo le mataupu lenei i le ofisa o leoleo. O loo tatalo foi ma tuu i le Alii mea uma, ae o laua lava ua la faamagalo i le o loo molia. E talitonu o laua mafaufau o luga lava o le sasi na mafua ai lenei mataupu.”

15. Although that is not an apology by the defendant to the victim, I will accept it as an apology according to our custom and tradition to her through her parents. An apology which was accepted by them. It is also significant that it was rendered immediately after the offending and before the matter came to the attention of the Police. This is a sign of true remorse. But I do not however agree with the parents evaluation that the offending can be blamed on “o luga o le sasi”. The defendants subsequent rape conviction shows he has serious sexual issues requiring to be addressed. Hopefully by rehabilitation programs carried out during his imprisonment tenure. Otherwise he will emerge no better behaved or better person than when he went in.
16. For the apology and reconciliation confirmed by page two of the Victim Impact Report Ameperosi I will deduct 9 months from the start point for sentence leaves 4 years and 3 months.
17. There should also be a deduction for your guilty plea for the reasons hereinbefore mentioned. Notwithstanding its lateness I give you a substantial credit of 1 year and 3 months, leaves a balance of 3 years in prison.
18. There are no other adjustments or deductions that can be made to your sentence Ameperosi because as noted earlier you are not a first offender you do have an old conviction.
19. The final sentence then against you Ameperosi is 3 years and I am satisfied that properly reflects the criminality of your offending and the circumstances of the matter. You are convicted and sentenced to 3 years in prison and because this offence is different in time, circumstances and victim to the rape term you are serving this term must be served separate to your rape term.
20. The offence the defendant has been convicted of is a registerable offence pursuant to section 6(1)(a) of the Sex Offenders Registration Act 2017 and means he should be now registered as a sex offender pursuant to that legislation. Particularly now that he has a record of two convictions for offences of a sexual nature within a span of 2 years. This is exactly the kind of offender that legislation is geared towards in an effort to prevent another young child or female falling prey to his actions.
21. O lona uiga mo le mataupu lenei Ameperosi masalo o lena ua e silafia e 3 tausaga le faasalaga mo le moliaga lenei, ae tatau ona tuli eseese leaga e ese le mataupu lenei ese leisi mataupu lea e te falepuipui ai.

JUSTICE NELSON