Police v Lemi [2020] WSSC 67 (24 August 2020)

SUPREME COURT OF SAMOA
Police v Lemi [2020] WSSC 67

Case name:	Police v Lemi
Citation:	[2020] WSSC 67
Decision date:	24 August 2020
Parties:	POLICE (Prosecution) AND PETUNU LEMI also known as PETUNU KALEPO LEMI male of Vaipuna and Moata’a. (Defendant)
Hearing date(s):	-
File number(s):	S985/19
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:

Order:

Convicted and sentenced to two (2) years in prison less any remand in custody time awaiting sentence.

Representation:	A Matalasi and D Fong for prosecution M Soonalole for defendant
Catchwords:	Sexual connection -
Words and phrases:
Legislation cited:	Sentencing Act 2016, s.8(2)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

PETUNU LEMI also known as PETUNU KALEPO LEMI male of Vaipuna and Moata’a.
Defendant

Counsel:
A Matalasi and D Fong for prosecution
M Soonalole for defendant

Sentence: 24 August 2020

S E N T E N C E

1. The thirty-eight (38) year old defendant taxi driver has pleaded guilty to one count of having sexual connection with the complainant at Taumeasina on 05 May 2019. The complainant at the time was thirteen (13) years of age and attending Primary School. There will issue a permanent suppression order prohibiting publication of her details including her village and where she goes to school or any other detail that may serve to identify her. This prohibition extends to all forms of communication via social media.
2. The uncontested Police summary of facts indicates that about 10:00 p.m. on the night of 05 May 2019 the complainant caught the defendants taxi to visit a friend at Vaitele-tai to return her friends phone. The road to the friends home was rough so the defendant did not want to drive his taxi all the way to the house. The friends brother came and picked up the phone and the complainant and the defendant left the Vaitele area. When the defendant asked the complainant how she was going to pay her taxi fare she told him she has no money and agreed to have sex with him as payment. At least that is what the defendant says. The couple then drove to a secluded spot at Taumeasina where they had sexual intercourse.
3. The summary of facts says afterwards the defendant instructed the complainant not to tell anyone about their sexual encounter and gave her $5:00. It would appear the money was in order to “buy her silence” as it were.
4. When the taxi arrived at the complainants house the complainants mother noticed the taxi and questioned the complainant and the defendant following which she called the police.
5. Defendant was originally charged with rape but this was subsequently withdrawn by the prosecution whereupon the defendant entered a guilty plea to the lesser charge of unlawful sexual connection. Unlawful sexual connection with a person between twelve (12) and sixteen (16) years of age an offence which is punishable by up to ten (10) years in prison. It is no defence to this kind of charge that the complainant consented. That is because the law is there to protect young girls from this kind of action by older and more mature men.
6. It is an unfortunate reality that the court sees a lot of this kind of charge these days involving young females. In this case the complainant is very young she was only thirteen (13) years of age and was in Primary School. The age difference between her and the defendant is twenty-five (25) years. The defendant is a married man with according to the pre-sentence report six (6) children and clearly he should have known better than to take advantage of a girl so young.
7. There is also a sad reality that this is not the first case involving a young female and a taxi driver. I have come across a number of these kinds of case as have my colleagues, establishing a disturbing pattern of behaviour that seems to be common amongst taxi drivers.
8. The message needs to go out in unequivocal terms not only to all men but to taxi drivers in particular that if you have a young female alone in your taxi at night, your responsibility is to transport her safely to where she wants to go not to do other things to her. If you abuse the trust that your young passenger has put in you the consequences will be dire and one of these is you will end up in prison.
9. In sentencing the defendant I also bear in mind the need to hold him accountable for his actions and the harm he has caused. The complainant says in the amended Victim Impact Report:

“O se a’afiaga ua iai nei ua lagona mā i tala a tagata e fai fai mai ia te a’u ae maise ai o lē o molia nei e fai lana toalua. O leisi tulaga ua fefe e fealua’i i se taxi talu ai o tulaga na tula’i mai ma ou a’afia ai. Ua a’afia ai foi ma lo’u alu i le aoga, ua ou musu ou te toe alu i le aoga ona o le tulaga matagā ua ou o’o iai.”

10. These are the words of the young victim herself. Clearly indicating the damage she has suffered as a result of this incident.
11. The courts sentence must also denounce the defendants actions as totally unacceptable and send the necessary messages to the male members of our community and as observed in particular the taxi drivers. In view of the complainants age I also take account of the factors in s.8(2) of the Sentencing Act 2016 in particular the defencelessness of the complainant who was a thirteen (13) year old alone in a taxi late at night and the gross breach of trust committed by the defendant. The complainant got into the defendants taxi after all to run an errand not to have sex with him.
12. As noted Petunu the maximum penalty by law is ten (10) years in prison. Considering all the relevant factors however in the circumstances of the matter I start sentence at four (4) years upgraded by one (1) year to five (5) because of the factors noted in s.8(2) above. From that need to be made certain deductions for the factors in your favour. These are the mitigating factors as noted by your lawyer.
13. You have a good background and your pre-sentence report speaks well of you there are many references made by many people about your good character and you have a clean police record. Standard deduction for all those matters applies to your case of six (6) months, leaves a balance of four and a half (4½) years.
14. It has been confirmed by the Probation Service that there has been the necessary apology and reconciliation. They say you and your wife have apologized to the complainant and her family. I give credit to your wife for standing by you, in the circumstances not many women would Sir. This is a large factor in your favour I will deduct one (1) year from the balance of your sentence, leaves three and a half (3½) years.
15. Some deduction needs to be made for your guilty plea because that has saved a thirteen (13) year old girl from publicly testifying and reliving this incident. The plea also means the court is saved the time and expense of a trial and represents an expression of your remorse for your offending. I also accept the plea was entered when the charge was finally established by the prosecution I give you therefore the usual reduction of about one-quarter of the balance of your remaining sentence and deduct one (1) year leaves two and half (2½) years.
16. In viewing the totality of your offending you are obviously Petunu a good man who has just made a very bad one-off choice. As an act of leniency I will deduct the remaining six (6) months, leaving a balance of two (2) years of your term.
17. In respect of this you will be convicted and sentenced to two (2) years in prison less any remand in custody time awaiting sentence.

JUSTICE NELSON