Police v Toevaa [2021] WSSC 65 (25 January 2021)

IN THE SUPREME COURT OF SAMOA
Police v Toevaa [2021] WSSC 65 (25 January 2021)

Case name:	Police v Toevaa
Citation:	[2021] WSSC 65
Decision date:	25 January 2021
Parties:	POLICE v FOUINA TOEVAA a.k.a MAUGA MALOFOU
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Niavā Mata Keli Tuatagaloa
On appeal from:
Order:	The accused is convicted and sentenced to 12 months’ supervision with the following conditions: (i) That he is to return and reside with his mother at Saleimoa; (ii) To report to his church Faifeau (Methodist), Rev. Liua twice a week – one during the week and one on Sundays; (iii) To attend church services on Sundays when he reports to his Faifeau; (iv) Not to re-offend and to stay away from school girls under the age of 16 years; and (v) Any other that the Probation Services impose.
Representation:	V. Faasii for Prosecution L. Su’a Mailo for the Accused
Catchwords:	Sexual connection with a minor (under 16 years old) – unlawful sexual connection (x3) – opportunistic offending – early guilty plea – first offender – remorseful – non-custodial sentence.
Words and phrases:	“mistaken belief of age of victim” – “sexual connection consensual” – “victim under age”
Legislation cited:	Crimes Act 2013 ss. 58; 59.
Cases cited:	Police v Aukusitino Lomitusi 06 June 2019, unreported (Clarke J); Police v Toetu Telea, 11 October 2017, unreported (Tuatagaloa J).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

FOUINA TOEVAA a.k.a MAUGA MALOFOU

Accused

Counsel: V. Faasii for Prosecution
Magele L. Su’a-Mailo for the Accused

Date: 25 January 2021

S E N T E N C E

1. The accused is charged with three counts of sexual intercourse with a girl under 16 years’ old. The maximum penalty is 10 years’ imprisonment.
2. The facts accepted by the Court for sentencing are:
   • The accused was 21 years’ old and the victim was 15 years’ old at the time of the offending. They were said to have been in a relationship.
   • The victim told the accused that she was 17 years old when he asked her how old she was;
   • The victim and the accused met on Facebook and when they met in person for the first time, they went to the defendant’s house at Saleimoa. The accused lives with his elderly mother but at the time his mother was in New Zealand and it was only him at home;
   • The victim stayed with the defendant for a week and it was during that time that the pair had sexual intercourse on the 15^th, 17^th and 21^st of August 2020;
   • Whilst the victim was staying with the accused the accused saw a notice by the Police of a missing girl and saw it was the victim. The accused called the number given to contact and it was the victim’s father.
3. The victim was in Year 10 at Pesega College while the accused is unemployed.

The aggravating factors

4. The aggravating factors of this offending are:
   • (a) The young age of the victim as she was 15 years’ old at the time of the offending. There is also the age disparity of 6 years between the victim and the accused who was 21 years’ old at the time; and
   • (b) The number of times the unlawful sexual connection (x3) took place between the victim and the accused.
5. The prosecution submits that the offending was pre-meditated in that the accused is said to have asked the victim to go with him to his house at Saleimoa to run an errand and that he would drop her off after but he did not. The pre-sentence report says that the accused asked the victim when he met up with the victim where she wanted to go and they both decided to go to his house at Saleimoa. The accused introduced the victim to his family and she was invited by the accused’s family to eat with them. Although there are discrepancies with the summary of facts and the pre-sentence report, what is clear was that the victim and the defendant did not immediately engage in sex when they got to the accused’s house but only did so in the early morning the next day. The offending was more opportunistic.

The mitigating factors

6. Counsel for the accused submitted in favour of the accused the following mitigating factors:
   • (a) The accused early guilty plea;
   • (b) His previous good character or first offender status;
   • (c) The accused co-operated with the police in locating the victim;
   • (d) Mistaken belief as to the age of the victim; and
   • (e) Remorsefulness.

Discussion

7. Although the sexual intercourse was consensual, the law forbids having sexual intercourse with girls under the ages of 12^[1] and 16^[2] as in this case. Even if the accused was not aware of the law, his ignorance is not a defence.
8. In the pre-sentence report the accused said that he asked the victim of her age and the victim told him that she was 19 years’ old. The accused relayed that he did not question the victim when she said she was 19 years’ old as her physique matched that of a 19-year-old. The accused confirmed in court that the victim told him she was 17 years’ old and that he is aware that it is unlawful to have sex with young girls.
9. There being no birth certificate from the prosecution as proof of the actual age of the victim nor the opportunity to actually see the victim, the Court will take what the accused said the victim’s response to when he asked her about her age – that she was older than 15 years of age. The Court also takes into account that it was the accused who contacted the victim’s father when he saw a Police posting on the internet of a missing girl which he saw to be the victim.
10. The Prosecution cited cases of similar circumstances whereby the Court had imposed custodial sentences to try and discourage such criminal behaviour by older males as sexual offending against younger girls is becoming more prevalent in our society. The Prosecution recommended a starting point of 12 months’ imprisonment citing the case of Police v Toetu Telea^[3] an unreported sentencing of this court involving the accused and the victim of the same ages as the present matter.
11. Counsel for the accused recommended a non-custodial sentence referring the Court to the unreported case of Police v Aukusitino Lomitusi^[4]of similar nature.
12. The circumstances of the two cases referred to by Counsels may be similar in nature and circumstances but are different. No two cases are the same and the golden rule is each case is to be judged according to its own peculiar circumstances.
13. If the Court takes the recommendation by the prosecution of a 12 month starting point the end sentence will be about two months; while if the Court impose a non-custodial sentence it will be a lengthier one than a custodial sentence. In the circumstances of this particular case, it will be appropriate to impose a lengthy non-custodial sentence rather than a (short) custodial sentence. This will enable the probation services to monitor the accused over a period of time to make sure that he does not re-offend, especially to commit an offence of similar nature.
14. The accused is convicted and sentenced to 12 months’ supervision with the following conditions:
    • (i) That he is to return and reside with his mother at Saleimoa;
    • (ii) To report to his church Faifeau (Methodist), Rev. Liua twice a week – one during the week and one on Sundays;
    • (iii) To attend church services on Sundays when he reports to his Faifeau;
    • (iv) Not to re-offend and to stay away from school girls under the age of 16 years; and
    • (v) Any other that the Probation Services impose.
      

JUSTICE TUATAGALOA

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^[1] Crimes Act 2013, section 58.
^[2] Crimes Act 2013, section 59.
^[3] 11 October 2017, unreported (Tuatagaloa J).
^[4] 6 June 2019, unreported (Clarke J).