Police v Tupuola [2018] WSSC 78 (25 May 2018)

IN THE SUPREME COURT OF SAMOA
Police v Tupuola [2018] WSSC 78

Case name:	Police v Faasalafa Metusela Tupuola
Citation:	[2018] WSSC 78
Decision date:	25 May 2018
Parties:	POLICE (Informant) and FAASALAFA METUSELA TUPUOLA, male of Faleula (Defendant)
Hearing date(s):
File number(s):	S558/18
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Michael Clarke
On appeal from:
Order:	- Accordingly, you are convicted on all charges before the Court and sentenced to 18 months supervision on the condition that (a) you are to carry out 220 hours community work; (b) to attend Toe Afua se Taeao Fou program with emphasis on alcohol and (c) any other programs as directed by the probation service and; (d) you are not to re-offend whilst on supervision. These are to be served concurrently. - I will judicially monitor your compliance with your sentence. You are accordingly directed to re-appear before me on Friday 24 August 2018 at 12.30pm for a report by the probation service as to your progress and compliance with this sentenced. If you do not satisfactorily carry out your community based sentenced, that sentence can be cancelled and substituted with an alternative sentence including imprisonment.
Representation:	L Mamaia for Prosecution Defendant self represented
Catchwords:	Burglary, indecent assault, Breach of trust, Reconciliation
Words and phrases:	Unlawful entry into a dwelling place, vulnerability of the victim, domestic relationship, related by blood to the victim, you regret and are embarrassed by your actions, lengthy non-custodial sentence.
Legislation cited:
Cases cited:	His Honour Sapolu CJ in Police v Ah Ching [2014] WSSC 17 (6 May 2014), Police v Mafiti [2015] WSSC 205 (27 November 2015), Police v Faamoe [2017] WSSC 53 (24 April 2017), Police v Iloa [2016] WSSC 40 (31 March 2016) and Police v Matagi [2018] WSSC 1 (15 January 2018).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

FAASALAFA METUSELA TUPUOLA, male of Faleula.
Defendant

Counsel:
L Mamaia for Prosecution
Defendant self represented

Sentence: 25 May 2018

ORAL SENTENCE

The Charge:

1. Tupuola, you appear for sentence on one charge of burglary (S558/18) and three charges of indecent assault. The charge of burglary carries a maximum penalty of 10 years imprisonment and indecent assault carries 5 years imprisonment.

The Offending:

2. Accordingly to the Prosecution summary of facts admitted by you, on Saturday 30 December 2017 around 4am, the victim was sleeping inside her home with her siblings. In respect of the first incident, you then entered the home of the victim without authority and approached the victim. You then hopped on top of the victim and kissed her on her lips. The victim saw your face at that time. Her sister woke up from her sleep and you then stood up and ran outside of the house.
3. In respect of the second incident, after you kissed the victim’s lips in respect of the first incident, the victim fell asleep. You again then entered her home without authority and approached the victim while she was sleeping. You went to the victim, lifted the victim’s t-shirt and licked her back with your tongue. The victim screamed and the defendant left the scene according to the summary of facts. You then returned and approached the victim in her sleep. You opened her pants and pulled it down. This then woke the victim up together with her siblings. You then fled the scene.
4. You told the Court that the indecent assaults occurred on two occasions not three that morning. You do not however dispute the summary of facts that your actions involved on the first occasion getting on top of the victim and kissing her lips. On the second occasion, you carried out the actions stated in the summary of facts as involving the second and third incident. That is you lifted her t-shirt and licked her back. You say that on the same occasion, you opened her pants and pulled it down causing the victim and her siblings to wake and you then fled the scene. You also told the Probation Service that you had consumed taula and a bottle of rice wine before committing your offending.

The Accused:

5. You are a 21 year old male of Faleula. According to the pre-sentence report you are the 6^th of 9 children and completed school to year 12 in 2016. You are employed by a carpenter earning $250 per week. You family depends on your for income.
6. Your village Mayor speaks of you as an active participant in village affairs and a regular church goer. The village mayor stated to the probation service that alcohol appears to have been a factor. The victim’s mother is your cousin. You are neighbors with your cousin and her daughter.

The Victim:

7. The victim is your cousin’s 12 year old daughter. She describes being scared at the time of your offending and disgusted by your actions.

Aggravating Features of the Offending:

8. In terms of the aggravating features of your offending are as follows:
   • (i) Breach of trust;
   • (ii) Unlawful entry into a dwelling place;
   • (iii) Age difference with the victim;
   • (iv) Vulnerability of the victim and;
   • (v) Offending was in a domestic relationship as you related by blood to the victim.
9. In terms of mitigating features to you offending there are none. There are also no aggravating features personal to you as an offender as you have no prior convictions.

Mitigating Features as an Offender:

10. In terms of mitigating factors personal to you as an offender I note the following:
    • (a) Having heard from you and read the pre-sentence report, I accept that you are genuinely remorseful;
    • (b) I take onboard your prior good character;
    • (c) Early guilty plea;
    • (d) Reconciliation and;
    • (e) The village penalty that has been imposed upon you paid by your family which consist of $1,000.00 and a large fine mat.

Discussion:

11. Your cousin, the mother of the victim has asked for the withdrawal of the charges against you according to the probation service. The victim impact report shows that there has been no significant ongoing negative effect of your offending on the victim, though she was disgusted by your behavior and at the time, scared. To the extent that I can take this into account bearing in mind that this is through the victim’s mother, I have referred to the sentencing remarks of His Honour Sapolu CJ in Police v Ah Ching [2014] WSSC 17 (6 May 2014)
12. The offence that you have committed is a serious offence because it carries for charge of burglary a maximum penalty of 10 years imprisonment and for indecent assaults for which you are charged, 5 years imprisonment.
13. The victim of your offending was your cousin’s 12 year old daughter. You have told the probation service that you regret and are embarrassed by your actions. You should be embarrassed and appalled by your actions because not only was the victim 12 years of age but she was your family member. This type of offence in the faa-Samoa is the source of shame.
14. Prosecution seeks an imprisonment term with a start point of 12 months imprisonment.
15. In considering your offending and the aggravating factors of your offending as well as those factors personal to you as an offender in mitigation, I have considered the sentencing authorities for indecent assault referred to by prosecution. These authorities include custodial and non-custodial sentences. I have also considered other sentencing authorities including Police v Mafiti [2015] WSSC 205 (27 November 2015) involving touching of the 7 year old victim genitals by the 70 year old accused (2 year sentence suspended), Police v Faamoe [2017] WSSC 53 (24 April 2017) involving indecent assault on young person (12 months supervision and 100 hours of community work and programs); Police v Iloa [2016] WSSC 40 (31 March 2016) and Police v Matagi [2018] WSSC 1 (15 January 2018) where non-custodial or suspended sentences were imposed. I accept that the offending in Police v Matagi is less serious than your case. I have also considered burglary charges including burglary together with indecent assault.
16. In all the circumstances, I have decided to impose a lengthy non-custodial sentence with community work. I bear in mind the purposed and principles set out in section 5 of your offending built in to the community based sentence.
17. Accordingly, you are convicted on all charges before the Court and sentenced to 18 months supervision on the condition that (a) you are to carry out 220 hours community work; (b) to attend Toe Afua se Taeao Fou program with emphasis on alcohol and (c) any other programs as directed by the probation service and; (d) you are not to re-offend whilst on supervision. These are to be served concurrently.
18. I will judicially monitor your compliance with your sentence. You are accordingly directed to re-appear before me on Friday 24 August 2018 at 12.30pm for a report by the probation service as to your progress and compliance with this sentenced. If you do not satisfactorily carry out your community based sentenced, that sentence can be cancelled and substituted with an alternative sentence including imprisonment.
    

JUSTICE CLARKE