Police v Toma [2021] WSSC 66 (21 April 2021)

IN THE SUPREME COURT OF SAMOA
Police v Toma [2021] WSSC 66 (21 April 2021)

Case name:	Police v Toma
Citation:	[2021] WSSC 66
Decision date:	21 April 2021
Parties:	POLICE v FUIMAONO FAAUILA TANIELU TOMA, male of Salani Falealili
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 defendant is convicted and sentenced as follows: (i) Rape – 12 years and 4 months’ imprisonment; (ii) Sexual connection with a girl under 16 years’ old (x5) – 3 years and 4 months’ imprisonment. The sentences are to be served concurrently. This means the defendant is to serve 12 years and 4 months’ imprisonment.
Representation:	V. Faasii for Prosecution T. Atoa for the Defendant
Catchwords:	Rape – sexual connection with a minor (under 16 years) – occurred multiple times – victim fell pregnant – 48 year age disparity – vulnerability of victim – offending pre-meditated – breach of trust – sentencing bands – early guilty plea – traditional apology carried out – village fine imposed & paid by defendant – custodial sentence.
Words and phrases:
Legislation cited:	Crimes Act 2013, ss. 52(1) & 58(1).
Cases cited:
Summary of decision:

NOTE: THERE IS A SUPPRESSION ORDER SUPPRESSING OR PROHIBITING THE PUBLICATION OF THE NAME OF THE VICTIM AND ANY DETAILS THAT MAY IDENTIFY HER

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

FUIMAONO FAAUILA TANIELU TOMA, male of Salani Falealili

Defendant

Counsel: V. Faasii for Prosecution
T. Atoa for the Defendant

Date: 21 April 2021

S E N T E N C E

1. The defendant who is 62 years’ old appears for sentence charged with one count of rape and five counts of having sexual intercourse with a girl under 16 years of age.
2. The summary of facts and the victim impact report give slightly different accounts of what took place. In the summary of facts, on six occasions the defendant had sexual intercourse with the young victim at a bush area at Satalo village (neighbouring village) on occasions when he asked the victim’s adoptive parents for the victim to accompany him to the shop to buy food or when he picked her up from school.
3. The defendant is a good friend of the victim’s parents and seemed to be a regular visitor to the victim’s home. A major concern of the Court is the fact that the defendant who is 62 years’ old, a close friend of the victim’s parents, and a regular visitor to the victim’s house would no doubt have known the victim is very young; yet knowing the actions he was carrying out is unlawful and not morally acceptable, this did not deter the defendant from having sexual intercourse with the young victim.
4. The first time it happened the victim was only 14 years’ old and it occurred multiple times resulting in the victim falling pregnant at the age of 15. The defendant in the pre-sentence report does not deny having a sexual relationship with the young victim but says that the young victim consented. Under the laws of our country it is illegal to have sexual connection with any girl under 16 years’ of age regardless if the victim consented. The Court does not accept that the young victim consented to any of the sexual liaisons that took place between her and the defendant.
5. The defendant’s behaviour is very predatorial. It seems both parents were naïve in the circumstances of this case allowing the defendant to take the daughter anytime he requested reflecting on the trust they had in him. Unfortunately for the daughter, she was exploited at the hands of a close family friend.
6. The defendant is a very dangerous person in society especially where young girls are concerned. From the pre-sentence report, the defendant was on parole when he committed the offending. The appropriate sentence is a custodial sentence.
7. The Prosecution highlights the following aggravating factors of this offending:
   • (i) Vulnerability of the victim as reflected in the age disparity of 48 years between the defendant’s age of 62 years and the victim’s age of 14 when the offending first began.
   • (ii) The offending’s were all pre-meditated. The defendant would under the guise of buying food had the opportunity to commit the offending’s. On two other occasions, he knew that the victim was home by herself.
   • (iii) Breach of trust – the defendant used his close relationship with the victim’s parents to gain access to the victim. The defendant is probably the same age as the parents and being a close friend obviously they trusted him. It would have never crossed their minds leading them to suspect that the defendant could do such a thing to their daughter, especially being so young as well.
   • (iv) There is deception on the defendant. He had easy access to the young victim simply by asking her parents for permission to accompany him to the shop to buy food.
   • (v) Frequency of the acts – the defendant had sex with the young victim eight times.
   • (vi) Impact on the victim – the young victim became pregnant at such a young age. This has no doubt had a detrimental impact on the young victim’s life – her education, her reputation as a young girl growing up in the village, her family and her peers; and also the mental, emotional and physical scars she bears.
8. I do not agree that the giving of money by the defendant to the victim after every sexual encounter is child grooming. The money was intended to hush the young victim.
9. The Prosecution recommends a starting point of 24 years’ imprisonment for the offence of rape and six years starting point for each offence of sexual connection with a girl under 16 years’ old.
10. Counsel for the defendant accepts that the offending would attract a custodial sentence and seeks a starting point at the lower end of Band 2 of nine years.
11. Counsel for the defendant also submitted mitigating factors to which I only find the following in mitigation:
    • (i) Early guilty pleas by the defendant;
    • (ii) The traditional apology by the defendant to the village, and the apology to the adoptive parents and the victim’s natural father; and
    • (iii) The village fine paid by the defendant.
12. There is the defendant who is much older and much more cunning in his ways in order to have access to the young victim. There are the young victim’s parents who are naïve and never thought their much older and close friend (defendant) would do what he did to their young daughter.
13. There may have been low level of violence in the circumstances of this case; the defendant was much older and stronger than the young victim. Any resistance from her would be easily overpowered by the defendant.
14. What is of more concern is that the defendant was trusted by the victim and her family, who had access to the victim’s home through close friendship with her parents yet had very sinister motives and preyed upon the young victim.
15. The offence of rape is life imprisonment.^[1] The appropriate starting point for the offence of rape is 18 years; less 18 months (1 ½ years) for mitigating factors and 25% for early guilty plea off 50 months (4 years and 2 months). This leaves 148 months or 12 years and 4 months.
16. Sexual connection with a young girl under 16 years of age attracts the maximum penalty of 10 years’ imprisonment.^[2] I agree as appropriate the starting point of 6 years’ recommended by the Prosecution for each count. I deduct 18 months for the mitigating factors and 25% discount for early guilty plea of 14 months. This leaves 40 months or 3 years and 4 months.

Conclusion

17. The defendant is convicted and sentenced as follows:
    • (i) Rape – 12 years and 4 months’ imprisonment;
    • (ii) Sexual connection with a girl under 16 years’ old (x5) – 3 years and 4 months’ imprisonment.
18. The sentences are to be served concurrently. This means the defendant is to serve 12 years and 4 months’ imprisonment.

JUSTICE TUATAGALOA

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^[1] Crimes Act 2013 s. 52(1).
^[2] Crimes Act 2013 s. 58(1).