Police v Ta'i [2018] WSSC 48 (5 April 2018)

IN THE SUPREME COURT OF SAMOA
Police v Ta’i [2018] WSSC 48

Case name:	Police v Ta’i
Citation:	[2018] WSSC 48
Decision date:	05 April 2018
Parties:	POLICE (Informant) and LUPEMATASILA TA’I a.k.a SILA TA’I male of Siufaga Falelatai (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Mata Keli Tuatagaloa
On appeal from:
Order:	Lupematasila, you are convicted and sentenced to 3 years and 2 months’ for each sexual offending to be served concurrently. The time you have been in custody after serving your 4 months’ imprisonment for possession of narcotics to await sentencing for this offending is to be deducted.
Representation:	L Sio for Prosecution L I Tanielu for the Defendant
Catchwords:	Unlawful sexual connection – sexual connection with a minor – penile penetration – 38 year age disparity – occurred multiple times – pre-meditation – vulnerability – victim became pregnant – consensual – custodial sentence – early guilty plea – banished from village
Words and phrases:
Legislation cited:	Crimes Act 2013 s. 59(1)
Cases cited:	Police v Fiso (Unreported Judgment, 15 June 2015). Police v Olo [2017] WSSC 10 (16 February 2017).
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

LUPEMATASILA TA’I a.k.a SILA TA’I male of Siufaga Falelatai
Defendant

Counsel:
L Sio for Prosecution
L I Tanielu for the Defendant

Sentence: 05 April 2018

SENTENCING OF TUATAGALOA J

1. Lupematasila, you are appearing for sentence on eight counts of sexual connection pursuant to s. 59(1) Crimes Act 2013 with Manatua Pa’u, a girl who was only 14 years’ old at the time of the offending. The sexual connection was by way of penile penetration and the penalty is maximum 10 years’ imprisonment for each offence.
2. The summary of facts prepared by the Prosecution has that on six (6) occasions the sexual intercourse with the victim took place on Sundays in the afternoon; the other two (2) sexual encounters took place on weekdays. The Court notes that these two week days were on the 01^st and 02^nd of June which are public holidays for Independence celebrations.
3. In the pre-sentence report (PSR) you told the probation officer that you go fishing with the victim’s father almost every Sunday and on these occasions you would meet the victim and have sexual intercourse. You also in the same report said that on one occasion the victim told you to come on a Wednesday which you did. What you told probation in the PSR confirms what the victim says which is what is in the summary of facts provided by the Prosecution. The summary of facts was read out and you have confirmed it.
4. You are 53 years’ old, divorced with four (4) children. The impression I get from reading the pre-sentence report is that you and the victim’s father are friends, that you go fishing together and you also drink together. You may be a good provider for your family as your sister says in the PSR but I disagree with her that you are a good brother who cares for his family. You were living with your sisters when the offending took place. If you were truly a good brother who cares for his family, you would not have done what you did. The implications or impact of your actions on your family especially your sisters is what you should have thought of. You are a matai who should have placed your family first.
5. Your behaviour in these offendings is predatorial. You are 38 years older than the victim who was 14 years old at the time. You used your relationship with the victim‘s father to gain access to the victim’s family and to the victim. The sexual offending did not happen once or twice but eight (8) times and they were mostly, if not all, pre-meditated. The bigger the age difference between the offender and the victim the more vulnerable the victim is, and the higher the culpability of the offender.
6. As a result of the sexual offending the young victim got pregnant and has since had the baby who is now four months’ old. This young victim has now become a mother at such a young age; she no longer attends school. Any dreams or hopes she may have had of completing her education that would greatly contribute to her prospects of getting a good job and becoming someone have been crushed. The reality is, her life has been ruined and the only life she is faced with now at such a young age is that of being a mother to her child, and to become someone’s wife and serve her family and village.
7. The accused says in the pre-sentence report that the victim consented to the sexual intercourse. The summary of facts further confirms this implying willingness on the victim’s part to the sexual intercourse that took place. I agree with Aitken J in Police v Avefua Melani Moimoi Fiso^[1] that the purpose of the law making sexual intercourse with girls under 12 or 16 years unlawful albeit consent on their part is for the protection of young victim’s from older and more sophisticated men as in this case. I also agree with Justice Tuala-Warren in Police v Time Olo^[2] that deterrence by way of custodial is most appropriate in order to send out a strong message to grown men that this behaviour is not tolerated.
8. Taking into account the circumstances of the offending I take 5 years as starting point for each offence as appropriate. I then consider any mitigating factors personal to the accused.
9. I deduct six (6) months for his previous good character. There are written testimonials to the accused good character from his Church Minister and the village pulenuu. A further three (3) months for the banishment by the village, this leaves 51 months. The accused is entitled to a 25% discount for his early guilty pleas which comes to 13 months. The end sentence is 38 months which is 3 years and 2 months’ imprisonment.
10. Lupematasila, you are convicted and sentenced to 3 years and 2 months’ for each sexual offending to be served concurrently. The time you have been in custody after serving your 4 months’ imprisonment for possession of narcotics to await sentencing for this offending is to be deducted.

JUSTICE TUATAGALOA

---

^[1] Police v Fiso (Unreported Judgment, 15 June 2015).
^[2] Police v Olo [2017] WSSC 10 (16 February 2017).