Police v Ligaliga [2018] WSSC 88 (14 June 2018)

IN THE SUPREME COURT OF SAMOA
Police v Ligaliga [2018] WSSC 88

Case name:	Police v Ligaliga
Citation:	[2018] WSSC 88
Decision date:	14 June 2018
Parties:	POLICE (Informant) and FALEONO LIGALIGA, male of Utualii & Tufulele-uta (Accused)
Hearing date(s):
File number(s):	S1853/17 & S1854/17
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Michael Clarke
On appeal from:
Order:	- The name of the victim, her family, village and school are suppressed. - On the two charges before the Court, you are convicted and sentenced to 6 months imprisonment to be served concurrently. Any time remanded in custody to be deducted from your sentence. - On completion of your imprisonment term, you are to be under the supervision of the Probation Service for 6 months and to attend such programs as directed by the probation service.
Representation:	I Atoa for Prosecution T T Patea for the Accused
Catchwords:
Words and phrases:	vulnerability of the victim given her age, sexual conduct with a young person under 16, you and the victim were in a “boyfriend and girlfriend” relationship
Legislation cited:	Crimes Act 2013
Cases cited:	Police v Lunai [2015] WSSC 176; Police v Taulapapa [2014] WSSC 66 and Police v Sale [2015] WSSC 259 (3 June 2015).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

FALEONO LIGALIGA, male of Utualii & Tufulele-uta
Accused

Counsel:
I Atoa for Prosecution
T T Patea for the Accused

Sentence: 14 June 2018

SENTENCE

1. Faleono Ligaliga, you appear for sentence on two charges of sexual conduct with a young person under 16 contrary to section 59(1) and (5) of the Crimes Act 2013 (S1853/17 and 1854/17).
2. You entered a guilty plea to the charges on the hearing date when two other charges against you were withdrawn.

The Offending:

3. According to the Summary of Facts accepted by you through counsel, you and the victim were in a “boyfriend and girlfriend” relationship. On the 7^th October 2017, you and the victim Attended White Sunday practice. After White Sunday practice at 10.00pm, you asked the victim to come with you to your house and she agreed. You then walked with her and others towards your house. The others who accompanied you went to their houses leaving only you and the victim. When you reached your house, you went with her to an unoccupied faleo’o. You spoke together about your relationship. At about 12am, you told the victim to remove her clothes and she complied. You told her to lie down and she also complied. You then removed your lavalava, lay on top of her and engaged in sexual intercourse. As you did so, you fondled her breasts.
4. Shortly after the first incident, you and the victim went to another faleo’o where there is a room inside. The victim took a shower and afterwards, you both went and sat in that unoccupied faleo’o. You then asked her to engage in sexual intercourse and she agreed. You then got on top of her and had sexual intercourse with her a second time.
5. As the Summary of Facts show that the two incidences occurred on the 8^th October 2017, the dates in information S1853/17 and S1854/17 are amended by deleting “the 07^th day of October 2017” and inserting “the 08^th day of October 2017...”

The Accused:

6. You are a 19 years old male. You are single and you stopped schooling in year 11. You are the youngest of six children. You were employed as a groundsman and carpenter. Your mother told the Probation Service that you are the only remaining child living with her and that you work in the plantation and vegetable garden that provides for the family.
7. You told the Probation Service that you began dating the victim after meeting her on a bus. You told the Probation Service that you had apologized to the victim’s family and the family had accepted the apology but decided to leave this matter for the Court to determine.

The Victim:

8. The Victim at the time of the offending was 13 years 8 months old. She was in year 8 at school.
9. The Victim Impact Report primarily given through the victim’s mother says that the mother was unhappy as her daughter’s name was ridiculed due to this matter. She also expressed her disappointment that you had not been to see them to reconcile this matter.

Aggravating and Mitigating Factors:

10. The aggravating features of your offending is the vulnerability of the victim given her age.
11. In relation to you as an offender, there are no aggravating features personal to you as you are a first offender. I accept in mitigation your guilty plea entered on the hearing date. I will also take into account your prior good character and your youth. Apart from what your counsel has said, there is no other evidence of remorse and there was no apology or reconciliation.

Discussion:

12. All prosecution authorities cited imposed custodial sentences. The sentencing authorities for sexual connection with a young person under 16 vary between custodial and non-custodial sentences. I have considered Police v Lunai [2015] WSSC 176. There, the accused was 23 years old and the victim 14 years old. An apology was rendered, accepted and reconciliation had occurred including with the presentation of an ifoga. I have also considered Police v Sale [2015] WSSC 259 (3 June 2015) where the age disparity was 17 and the victim just under 16 years of age. In Police v Taulapapa [2014] WSSC 66, the accused and victim ultimately married and despite their age disparity, a non-custodial sentence was imposed.
13. In your case, whilst you told the Probation Service that an apology had been rendered and accepted, this did not take place. You also knew that the victim was under 16. Bearing in mind the authorities to which I have been referred, I accept that a custodial sentence in the circumstances is the appropriate sentence.
14. For the two charges before the Court, I adopt 12 month start point for sentence. I deduct 1 month for your prior good character and 3 months for your youth. For your guilty plea on the hearing date, I will deduct 2 months

The penalty:

15. On the two charges before the Court, you are convicted and sentenced to 6 months imprisonment to be served concurrently. Any time remanded in custody to be deducted from your sentence.
16. On completion of your imprisonment term, you are to be under the supervision of the Probation Service for 6 months and to attend such programs as directed by the probation service.
17. The name of the victim, her family, village and school are suppressed.

JUSTICE CLARKE