Police v Tuliau [2020] WSSC 27 (19 February 2020)

IN THE SUPREME COURT OF SAMOA
Police v Tuliau [2020] WSSC 27

Case name:	Police v Tuliau
Citation:	[2020] WSSC 27
Decision date:	19 February 2020
Parties:	POLICE (Informant) and TUGIA TULIAU, male of Tafagamanu & Safotu Savaii
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:	The accused is convicted and sentenced as follows: (i) The sentences for the offences of sexual connection with a dependent family member (x8) of 4 years + 10 months’ imprisonment are to be served concurrently; (ii) The sentence for the offence of indecent act (x1) of 12 months’ imprisonment is to be served concurrently with the offences of sexual connection with a dependent family member. The accused is to serve a total of 4 years and 10 months’ imprisonment.
Representation:	A Matalasi & V Faasii for Prosecution K Koria for the Defendant
Catchwords:	Church Minister – breach of trust – first offender; traditional apology carried out; remorseful; custodial sentence; early guilty plea.
Words and phrases:	sexual connection with a dependent family member; indecent act on a dependent family member; occurred multiple times; 36 year age disparity.
Legislation cited:	Crimes Act 2013, ss. 56(1)(a); 56(3);
Cases cited:	Police v Vui [2020] WSSC 8 (24 January 2020).
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

TUGIA TULIAU male of Tafagamanu & Safotu, Savaii

Defendant

Counsel: A Matalasi & V Faasii for Prosecution
K Koria for the Defendant

Sentence: 19 February 2020

SENTENCING OF TUATAGALOA J

1. The defendant appears for sentence on the following charges:
   • (i) Sexual connection with a dependent family member (x8)^[1] which carries maximum penalty of fourteen years’ imprisonment; and
   • (ii) Indecent Act on dependent family member (x1)^[2] which carries maximum penalty of 14 years’ imprisonment;

Background

2. The defendant was the Church Minister for the Methodist Church at Satalo, Falealili since 2015. He is married with four children aged 9 - 13 years’ old.
3. The victim is a 16-year-old female of the village of Satalo whose family are members of the parish where the defendant served. In 2018 the defendant and his family took the victim under their care and she became part of the defendant’s family regarded as one of their children and she even called the defendant ‘Dad’. The victim was attending college at the time
4. It is common practice for parents in Samoa to have their sons/daughters live at their Church Minister’s homes, observed as their service to the Church where their children are also safe and with the hope for a prosperous future for their children living in an influential household that is able to provide stability – not only financially but also spiritually under the moral guidance and direction of the Church Minister and his wife.
5. The accused confirms the summary of facts by the Prosecution which basically says that:
   • The accused committed the offending on the 15^th, 16^th and 27th of September 2019;
   • The offending took place at home at Satalo. The wife was away for a few days attending a family funeral leaving only the defendant, the victim and their young children at home;
   • According to the summary of facts, the 13 year old daughter at one time saw both the victim and her father coming out of the bedroom. On another occasion, the same daughter woke up in the middle of the night and heard noises coming from her parents’ bedroom and was suspicious of what was going on between her father and the victim as her mother was not home and the victim was not sleeping where she is supposed to be with her and three other siblings; and
   • It was the 13 year old daughter who confided in her school teacher of what she suspected between her father and the victim.
6. The acts of sexual connection committed by defendant are inserting his fingers into the genitalia (x1), licking the victim’s genitalia (x3), and rubbing his penis against the victim’s vagina and inserting his penis (x4).
7. The indecent act is the sucking of the victim’s breasts (x1).

The accused

8. The defendant at the time of the offending was 51 years’ old. Prior to becoming a faifeau, the defendant was a Primary School teacher for 14 years ^[3]. The defendant from the pre-sentence report (PSR) is a well-educated person who for 14 years was a Primary School teacher working with children.
9. The defendant’s wife continues to find it difficult to accept what has happened and believes that the accused is truly remorseful of his actions. She speaks of the accused as an affectionate and caring family man. Written testimonials are provided from various faifeau of the Methodist Church speaking of the accused as being an honest, hardworking, dependable and trustworthy person. All these positive qualities mentioned across the many written testimonials attributed I find hard to accept considering what he has done. If he was truly the person the written testimonials refer to, he should have self-control to not succumb to any feelings and thoughts that led him to do what he did.
10. The pre-sentence report confirmed an apology by the accused to the Methodist Church which apology was said to have extended to the victim’s family. The wife of the victim’s family chief (Sa’o), says that although they have accepted the apology they would like to leave the matter with the Courts.

The victim

11. The victim from the prosecution’s summary of facts was 16 years' old at the time. The summary of facts say that the first sexual encounter occurred on the night of the victim’s 16^th birthday. The young victim spoke about the ordeal in her VIR that she feels ashamed with what has happened and how the people in the village look at her. She says that she never wants to look at or see the defendant or members of his family.

The aggravating factors

12. The most aggravating factor of this offending is the relationship between the accused and the victim. As the victim was taken in by the defendant as a member of his family, she was treated as one of his children, thus became a dependent family member of the accused. The responsibility for the victim’s safety and her overall wellbeing was entrusted to the defendant and his wife, seen as parental figures to the young victim.
13. The negative impact of such an offence is a violation of our core values and beliefs, and encompasses all other aggravating factors as noted by the Prosecution in their submissions. The age disparity of 36 years’ difference between the defendant and the victim is an indication of the extent of vulnerability of the victim.
14. Our society is structured around our cultural values and religion. We place great emphasis on our spirituality to which we look to our religious leaders such as the faifeau for guidance. Unfortunately, this was not the case for the young victim as the trust was severely breached by the accused. The accused has also breached the trust that the victim’s family placed in him as ‘faifeau’.
15. I find as aggravating the fact that the accused is a ‘faifeau’ a person respected by people in society whom they look up to for spiritual guidance. The defendant has breached a lot of trust - trust of the victim’s parents and family who felt for the best interest of the victim, allowed her to stay with the faifeau; breach of the confidence of his congregation and village in him; and also the tarnishing image it has left on the Church, and other members of the clergy.
16. No doubt his behaviour and actions has also impacted on his children and wife who also suffer. Life will never be the same, they will also have to live with the shame and guilt.
17. The number of times is not only aggravating in itself but shows that except for the first time the other times were pre-meditated. I find his behaviour to be predatory in that he acted when his wife was away from home.
18. Victims of sexual offending have to live with the long term emotional and psychological scars that remain as well as the negative stigma attached to such a traumatic experience. The younger the victim the more vulnerable. Sadly, in this case the perpetrator is a ‘faifeau’ entrusted with the care of the victim and he was given utmost respect from people of his congregation as well as the community being a ‘man of God’. One would not think he would be prone to such behaviour.

The mitigating factors

19. The accused is a first offender and I will allow considerable discount. I accept that he is remorseful for his behaviour. A costly mistake for a person of prominent status, as a ‘faifeau’ he failed in his calling as a servant of God and the important role that he was entrusted to carry out.
20. I will also allow for some discount for the various written testimonials submitted on his behalf although I have difficulty reconciling the person the wife is talking about as a loving husband and the person that he actually is who was capable of carrying out such disgraceful acts on the 16 year old victim whom he is said to have treated as his own daughter. A devout Christian (in my view) would not act so impulsively as the accused did; and as a loving husband to his wife and father to his children should not have done such acts or behaviour. I will allow for some discount for the person that he was prior to the offending – that he was a good person.
21. I will also take into account the traditional apology that was carried out by the defendant to the victim’s family and accept that he is remorseful for his actions.
22. For his early guilty plea, the Court gives a 25% discount.

Discussion

23. This is an illness. Such offending continues to have a profound negative impact on young girls as matters continue to come before the Court having occurred within families, at workplaces, out in the community and as seen in this case, even in the hands of a member of the clergy.
24. I reiterate what I have said in another case with circumstances similar to the present matter:
    • “The reason behind the law is because of the need to protect young girls from people like the accused. The safety of our young vulnerable girls from predatory behaviours of older males needs to be vigilantly protected. For a country that places a lot of emphasis on family, culture and religion, the increase in the number of sexual violations and abuse against young girls in villages and especially within families’ shows a breakdown in our society and on the innate shared understandings pertaining to our cultural values. It is from our culture that we place importance in the status of our children, our women and overall our aiga (family). It is with a heavy heart that such values are very much being threatened.”
    • “Our community also need to play a part in advocating against these kinds of crime. The three pillars of society that encompass our existence as Samoans – family, culture and religion need to step beyond the “shared understanding,” “knowing what is right from wrong,” and really go that extra mile and action these thoughts, stand up and protect our young – people in families, leaders & members of churches; and the community as a whole – from grassroots level within villages to established organizations. We all need stop brushing such issues under the carpet but make it known that it is not OK, and also assist with individuals that fall prey to such unfortunate offending through counselling services, etc. because in the long run, if these victims are able to tell their story, it could help another individual facing the same predicament.”^[4]
25. These were sexual acts including penetration of a dependent family member that occurred on three separate occasions during the time the defendant’s wife was at a family faalavelave. This meant she was away from the family home for a few days leaving the accused at home to look after the children including the victim. Never did it cross her mind (the wife) that her husband would even think of doing such a thing.
26. In the circumstances of the offendings and the relationship between the victim and the accused make the accused offending very serious and at the high end of the scale. It does not matter whether it was done once or a couple of times the fact that such a callous act even occurred is repulsive.
27. It is without a doubt that a custodial sentence is most appropriate. The only question is how long. Each case is to be sentenced accordingly to its own circumstances.

Sexual connection with a dependent family member (x8)

28. The prosecution provides sentencing decisions of this Court in offending of this nature which range from 22 months – 7 years starting point. Prosecution seeks for a starting point of 8 years. Defence Counsel submits that there has not been any case of this offending that has been set with a starting point of 8 years. Counsel for the defendant highlighted the differences between the cases relied upon by the prosecution and the present case and says that a starting point of less than 5 years would be appropriate.
29. In the circumstances of this particular offending, taking into account the aggravating factors I agree to 8 years as starting point. I deduct 12 months for his prior good character and 6 months for the apology and accepting that he is remorseful for his behavior. I give 25% discount of 20 months for early guilty plea. This leaves 58 months or 4 years + 10 months for each count.

Indecent Act on a dependent family member (x1)

30. The accused behaviour was sucking the victim’s breasts on one occasion. A starting point of 2 years; less 6 months for his offending status; 3 months for the apology and being remorseful; and further 3 months for his early guilty plea. This leaves 12 months or 1 year.

Conviction and sentence

31. The accused is convicted and sentenced as follows:
    • (i) The sentences for the offences of sexual connection with a dependent family member (x8) of 4 years + 10 months’ imprisonment are to be served concurrently;
    • (ii) The sentence for the offence of indecent act (x1) of 12 months’ imprisonment is to be served concurrently with the offences of sexual connection with a dependent family member.
32. The accused is to serve a total of 4 years and 10 months’ imprisonment.
    

JUSTICE TUATAGALOA

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^[1] Crimes Act 2013, section 56(1)(a)
^[2] Crimes Act 2013, section 56(3)
^[3] Confirmation letter from the Ministry of Education, Sports and Culture
^[4] Police v Vui [2020] WSSC 8 (24 January 2020)