Police v Tui [2020] WSSC 54 (24 July 2020)

SUPREME COURT OF SAMOA
Police v Tui [2020] WSSC 54

Case name:	Police v Tui
Citation:	[2020] WSSC 54
Decision date:	24 July 2020
Parties:	POLICE v PELEPESITE TUI also known as SIKE CHRIS TUI male of Satupaitea, Asau and Vaitele-Fou.
Hearing date(s):
File number(s):	S623/19
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	- On the charge of indecent assault of the complainant you are convicted and sentenced to twelve (12) months in prison. Remand in custody time to be deducted.
Representation:	L Faasii for prosecution T Ponifasio for defendant
Catchwords:	home invasion – indecent act –young age and vulnerability
Words and phrases:
Legislation cited:
Cases cited:	Attorney General v Lua [2016] WSCA 1 Police v Fa’asavalu [2018] WSSC 34 Police v Sosopo [2017] WSSC 62
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

PELEPESITE TUI also known as SIKE CHRIS TUI male of Satupaitea, Asau and Vaitele-Fou.
Defendant

Counsel:
L Faasii for prosecution
T Ponifasio for defendant

Sentence: 24 July 2020

S E N T E N C E

1. The charge against the defendant is that on the 17^th of February 2020 he committed an indecent act on a nine (9) year old child. A suppression order if one has not already been issued will be issued in respect of suppression of publication of the details of the young girl including her village of residence and any other specifics that may identify her. That suppression order extends to publication on all forms of social media.
2. The Police summary of facts which do not seem to be in dispute states that the defendant is a 21-year-old male and was living next door to the victims family. Pre-sentence report however which I regard as more accurate states the defendant is in fact 23 years of age and for sentencing I will use that as the basis of his age. This means that given the victim was 9 years of age the age disparity between the two is 14 years. The young girl was still in Primary School.
3. The summary of facts says that the defendant and the girls father are good friends and that the defendant is always hanging out at the victims house drinking with the victims father. Continues to say that on the date in question 17 February 2019 the defendant was drinking not with his good friend next door but with some other friends in front of a shop.
4. The drinking party finished somewhere between 1:00 and 3:00 a.m. in the morning and the defendant went home. Instead of home he went next door to the victims house and approached the victim who was sleeping in the living room together with her little brother and grandmother. The defendant committed an indecent assault on the victim by touching her private part area from outside of her shorts which caused the victim to wake up. The girl screamed out the defendants name and the defendant left the scene.
5. The next day she reported the incident to her family and the matter was referred to the police resulting in these charges against the defendant. The defendant originally contested the charge but on trial day changed his plea to guilty.
6. This is clearly serious offending on a young child by a male over twice her age. As stated by my sister Judge Tuatagaloa in Police v Fa’asavalu [2018] WSSC 34 “the bigger the age difference the more serious the offending”. This kind of offending must be met with an equally serious response. To hold the defendant accountable, to emphasise to him the seriousness and gravity of his conduct, to denounce his behaviour, to deter him from future repetition of his conduct and to deter others from copying the defendant.
7. I also take into account the young age and vulnerability of the victim who was sleeping alone at night with no older family members around. This is also home invasion kind of offending because the family were inside the house asleep when the defendant entered and committed this crime. People are entitled to sleep undisturbed in their houses free from this sort of carrying on.
8. I also take into account that there has been a breach of trust because the defendant is a neighbour and a good friend of the victims father. He would have been familiar with the victim and the house of the family and was probably treated by the family as one of their own. Instead of protecting the young girl as Samoan men of his age should do he preyed upon her.
9. On the other side of the coin I bear in mind that the actions of the defendant were non-penetrative and involved touching of the victims private part through her shorts. The defendant was also under the influence of alcohol at the time but that is never an excuse for criminal behaviour. According to what I have read Pelepesite has a drinking problem and he should do something about it. If he cannot drink and control himself he should stop drinking.
10. The maximum penalty for what the defendant did is 14 years imprisonment. This case does have similarities with Police v Pesamino [2019] WSSC 75 except there the defendant was the victims uncle and was older. In that case there was actual physical contact between the defendant and the victim.
11. I agree with the defendants lawyer that the case of Police v Setefano Epati [2013] WSSC 142 also cited by the prosecution in their memorandum is distinguishable from the present matter for many reasons. In particular, in that case the girl was a teenager not a young child under 12. The case of Police v Sosopo [2017] WSSC 62 cited by counsel is probably a more useful guide in terms of the criminality of the offending.
12. As I said the maximum penalty is fourteen (14) years in prison but considering all factors in this matter and the Court of Appeal guidelines in Attorney General v Lua [2016] WSCA 1 I will start sentence at the lower end of Band 1 at two (2) years in prison. From that you are entitled to certain deductions for mitigating factors as pointed out by your counsel. You are a first offender, you have a good background of service to your aiga and the pre-sentence report on you is good and supported by references. To reflect those factors I deduct six (6) months from the start point leaves eighteen (18) months.
13. There is no evidence of any apology or reconciliation in this matter but your guilty plea although entered on trial day still counts because it has spared the complainant having to testify. Your guilty plea has also saved a valueless exercise by the court. For that I deduct further six (6) months from your sentence, leaves twelve (12) months in prison. No other deduction need be made in respect of your matter Pelepesite.
14. On the charge of indecent assault of the complainant you are convicted and sentenced to twelve (12) months in prison. Remand in custody time to be deducted.

JUSTICE NELSON