Police v Filipo [2020] WSSC 36 (3 July 2020)

IN THE SUPREME COURT OF SAMOA
Police v Filipo [2020] WSSC 36

Case name:	Police v Filipo
Citation:	[2020] WSSC 36
Decision date:	03 July 2020
Parties:	POLICE (Prosecution) and TANIELU TAUTALAFUA FILIPO male of Vaitele-fou & Savaia Lefaga (Defendant)
Hearing date(s):
File number(s):	S82/20, S83/20
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	On both counts of unlawful sexual connection you are convicted and sentenced to 8 years in prison each charge but terms to be served concurrently. On the indecent assault charge convicted and sentenced to 2 years in prison, term also to be served concurrently. It is also ordered that your time in custody awaiting the disposition of your case is to be deducted from your term. And as a final order that you be enrolled upon release from prison on completion of your sentence in the Sex Offenders Registry and that the normal mechanisms applicable thereunder will apply to you.
Representation:	A Matalasi for prosecution M Soonalole for defendant
Catchwords:	unlawful sexual connection – indecent assault – previous convictions – early guilty plea – custodial sentence.
Words and phrases:	occurred on two separate occasions.
Legislation cited:	Sentencing Act 2016 ss. 6(a); 6(b); 8
Cases cited:	R v AM [2010] NZCA 114; [2010] 2 NZLR 750; Police v JI [2018] WSSC 50
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

TANIELU TAUTALAFUA FILIPO male of Vaitele-fou and Savaia Lefaga.

Defendant

Counsel: A Matalasi for prosecution
M Soonalole for defendant

Sentence: 03 July 2020

SENTENCE

1. The defendant has pleaded guilty to two counts of unlawful sexual connection with the then 13-year-old complainant on two different dates. Although having reviewed the police summary of facts it seems to me the appropriate charge in relation to at least the second incident and possibly the first as well would have been one of rape. That seems to be the more appropriate description of what occurred.
2. The problem may lie in the fact that the definition of “rape” under our present law does not include forced anal intercourse by one male upon another. And that may be why the defendant has been charged with the lesser offence of unlawful sexual connection.
3. Whatever the case may be that is what the police have charged him with and is what he pleaded guilty to and that is what he will be sentenced upon. However, this would seem to be an appropriate matter to be drawn to the attention of the Samoa Law Reform Commission to consider whether the present law require amendment. Because it is now a recognised fact that forced anal sex between males is as much “rape” in every sense of the word as non-consensual penile-vaginal intercourse between male and female.
4. The defendant also pleaded guilty to one count of indecent assault by forcing the young boy on the second occasion to fellate him. All offences carry significant maximum sentences of imprisonment.
5. The police summary of facts states that the defendant is a 25-year-old male of Savaia Lefaga, he is single and said to be unemployed but the pre-sentence report does seem to indicate that he was working at Brunos Circus at the time of these incidents.
6. The victim was then a 13 year old male attending college and the suppression order already made in respect of suppression of publication of the name and other details of the victim will be made permanent. This suppression order extends to any form of communication utilising all social media platforms such as Facebook, Twitter, WhatsApp etc.
7. At the time of this offending the victim was staying with his family in the same village where the defendant stayed with an uncle. In respect of the first incident charged by information S83/20 it is stated that on Tuesday 04 June between 5:30 and 6:30 p.m. in the evening the complainant walked to a nearby shop on a family errand and came across the defendant. The defendant was standing next to a bushy area some meters away from the shop. The police summary says the defendant held the victims hand and pulled him towards the bush and asked him for a kiss. The victim replied “e ke valea”. The complainant then told the defendant he wanted to go home but the defendant grabbed the complainants hand and took him further into the bush. At that time of the evening no one was around.
8. In the bushy area the defendant kissed the complainant on the lips and pulled down his pants before he undressed the complainant. He instructed the complainant to bend over facing his back to him and the complainant complied out of fear. The defendant inserted his penis into the complainants anus and had anal sex with him. Afterwards the defendant warned the victim not to tell his mother what happened. And the complainant went home and it appears from what is before the court he did not tell anyone about the matter.
9. The second incident related in the summary of facts involves charge S82/20 and the other charge of committing an indecent act. The circumstances are that some two days after the first incident namely on Thursday 06^th of June between 6:00 and 7:00 p.m. the complainant again went to the shop on a family errand and the defendant followed him. The defendant waited in front of a bushy area and when the complainant returned the defendant called out to him saying “sole toe sau e fai se ka meavalea”. The complainant attempted to flee but the defendant grabbed him and dragged him into the bush. Where the defendant pulled down his pants and instructed the victim to fellate him. The complainant refused but the defendant forced his penis into the complainants mouth. After that the defendant instructed the victim to bend over facing his back and he inserted his penis into the complainants anus and again had anal sex with him. After the incident the complainant returned home crying and upon questioning by his mother related to her what had happened. The matter was reported to the Faleata Police Office and the summary goes on to state that the defendant was apprehended and taken to the Faleata Police Office for questioning on the 8^th of January 2020.
10. If the summary of facts is correct and the matter was reported to the Faleata Police on the 6^th of June 2019 I am at a loss to understand why the Police took seven (7) months to question the defendant. Complaints of a sexual nature involving a possible sexual assault on a 13-year-old should be accorded the same priority as a homicide or a conspiracy to commit a homicide. I am accordingly sending a copy of these sentencing remarks direct to the Commissioner of Police for his review of this case so that some light can be shed on this issue.
11. When the Police did file charges against the defendant who has at all material times been represented by counsel the defendant initially pleaded not guilty to all the charges. Subsequently he withdrew those pleas after the prosecution had withdrawn some charges and the defendant pleaded guilty to the three remaining. The three for which he is today to be sentenced.
12. In sentencing the defendant I pay due regard to the relevant principles outlined in the Sentencing Act 2016. In particular the need to hold the defendant accountable for his actions and the harm he has done to the community as well as to the complainant who says in his Victim Impact Report that he does not even know the defendant. He said he was lured by the defendant into the “togavao” or bushy area where these actions took place. And he was afraid to tell anyone because of the defendants threats. There is no doubting how intimidating and fearful a 13-year-old can be when threatened by a mature male over 10 years older than him.
13. The defendants sentence today must also denounce his conduct as completely unacceptable to the community. And must serve to deter the defendant himself from this kind of behaviour. As well as anyone else foolish enough to even contemplate sexually assaulting vulnerable young boys.
14. The sentence regrettably cannot address the causes of the defendants behaviour because I have no doubt there are deep seated causes for it rooted in the defendants past. But hopefully during his imprisonment term some consideration can be given by the Prison Authority to his rehabilitation and reintegration. Because the reality is for offenders like the defendant notwithstanding the horrible things they do will one day have to be released back into the community. And if the causes of offending are not addressed the likelihood of repeat behaviour is high. One thing is for certain the defendants crimes are of such seriousness that he must be enrolled upon release on the Sex Offenders Registry so that the chances of him hurting anyone else in the future is to the extent possible minimised if not eliminated.
15. In sentencing I also take into account as I must the factors outlined in s.6(a) and (b) of the Sentencing Act and because the complainant is under 18 those listed under s.8. In so far as aggravating factors are concerned these include the threats made by the defendant to the young boy to secure his compliance with the defendants desires, the physical force used by the defendant on both occasions to take the complainant into the bushy area, the vulnerability of the defendant who was a 13-year-old alone going to a shop on family errands in the evening when the road by and large was deserted, the age disparity of 12 years between the defendant and the complainant. I also note there is some evidence of pre-meditation because both offences occurred in the early evening and on both occasions the defendant waited in front of a bushy area for the complainant to return from the shop. I also note the impact the offending has had on the complainant who in his Victim Impact Report talks of his fear of confronting the defendant again. And I have no doubt this 13-year-old would now regard walking to the shop in the evening as a traumatic experience. I also take into consideration the threats made post offending by the defendant to the complainant not to tell his family in order to conceal what he had done.
16. The prosecution have submitted the defendants previous convictions for arson narcotics and grievous bodily harm as further aggravating factors. However in fairness to Tanielu those involved completely different type of offences. And while they show a history of criminal offending there will be no uplift for those crimes. It only means he cannot be treated as a first offender because he is not and he therefore loses that benefit.
17. Sentencing in this country for this kind of offending is governed by the case of R v AM [2010] NZCA 114; [2010] 2 NZLR 750 as applied by our courts on many previous occasions. Prosecution submission does not refer to this but I propose to follow the approach of my brother Justice Clarke in Police v JI [2018] WSSC 50 and I assess the offending here as being in the B-3 category but at the lower end. I accordingly accept the prosecution submission that a start point of 10 years in prison is warranted.
18. From that start point for sentence deduction needs to be made for mitigation factors as referred to by your counsel in his submission to the court. As stated you are not a first offender so no deduction for first offender status. But the pre-sentence report does testify to your service to your family and your mother speaks highly of you. And it appears that you were working and supporting the family when this offending occurred. All these warrant the normal deduction of 6 months from the start point leaving a balance of 9½ years.
19. There is no evidence of a customary or other reconciliation or apology and there is no reference by your lawyer to this aspect. The court must therefore assume it has not been carried out and therefore no deduction can be made for that matter as per normal. But the court can allow a deduction for your guilty plea. Although entered late but it was clear it was only done after the prosecution settled on the final charges by withdrawing some of the charges against you. The plea also meant the young complainant was not put through the ordeal of a trial and the courts valuable and limited resources has not been wasted. This all merits a further deduction of 1½ years from the balance, leaving 8 years in prison.
20. There is no further mitigating or any other factors requiring adjustment to your sentence. On both counts of unlawful sexual connection you are convicted and sentenced to 8 years in prison each charge but terms to be served concurrently.
21. On the indecent assault charge convicted and sentenced to 2 years in prison, term also to be served concurrently.
22. It is also ordered that your time in custody awaiting the disposition of your case is to be deducted from your term.
23. And as a final order that you be enrolled upon release from prison on completion of your sentence in the Sex Offenders Registry and that the normal mechanisms applicable thereunder will apply to you.
    

JUSTICE NELSON