Police v Mulipola [2021] WSSC 71 (30 June 2021)

IN THE SUPREME COURT OF SAMOA
Police v Mulipola [2021] WSSC 71 (30 June 2021)

Case name:	Police v Mulipola
Citation:	[2021] WSSC 71
Decision date:	30 June 2021
Parties:	POLICE v MICHAEL MULIPOLA a.k.a VILI TALAU, male of Manono-uta, Fugalei & Samatau
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 to 2 years’ supervision with the following conditions: (i) Not to be anywhere near girls (other than his own children) of less than 16 years’ old; (ii) Attend the Tama Faufautua Programme; (iii) To carry out 80 hours’ community work; and (iv) Not to re-offend.
Representation:	V. Faasii for Prosecution A. Matalasi for the Defendant
Catchwords:	Sexual connection – touching victim on the genitalia – defendant was banished – reconciliation – familial connection between defendant and victim (in law) – 19 year age disparity - supervision sentence.
Words and phrases:
Legislation cited:	Crimes Act 2013, ss. 50(a); 59(1).
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

MICHAEL MULIPOLA a.k.a. VILI TALAU, male of Manono-uta, Fugalei & Samatau

Defendant

Counsel: V. Faasii for Prosecution
A. Matalasi for the Defendant

Date: 30 June 2021

S E N T E N C E

1. The defendant appears for sentence on one count of sexual connection by touching the victim on the genitalia. The penalty for such offending is maximum 10 years’ imprisonment.^[1] The victim is a young female under the age of 16 years.
2. The defendant’s wife is a cousin of the victim and they both live at the same village. On or between 31 March and 07 June 2019, the victim was walking on the road when the defendant drove by and picked her up. The defendant drove to a secluded area, parked the car and walked around to the passenger seat where the victim was sitting. He positioned the victim to lean back on the chair; started kissing her and placed his hand inside the victim’s pants touching her vagina. The victim was uncomfortable and so she moved away from him (fiti ese). The defendant got angry, scolded the victim for wasting his time; got back in the car and drove away.
3. The victim’s family reported the matter sometime in July 2019. This matter has been in the system for quite some time now.
4. According to the submissions by counsel for the defendant, the defendant was banished from the village for 12 months and has since been reinstated back. This is confirmed by the pulenuu of Manono-uta [see letter dated 28 May 2021]. There has also been reconciliation by the defendant’s family and that of the victim.
5. There is the obvious aggravating factor of the offending where there is a familial connection that has been breached by the defendant, the breach of trust. The victim is trusted by the defendant who is much older and married to her first cousin. The victim is much younger than the defendant with a 19 year age gap between them. The wider the age difference, the more vulnerable the victim is.
6. According to the victim impact report obtained from the victim, the offending weighs heavily on the victim’s mind and that she cries every time anyone talks about it. I think this is more of embarrassment and vindication within the village and family on the victim.
7. The defendant although he did plead guilty at first nevertheless changed his ‘not guilty’ plea and had gone through village banishment and abided by village protocols of getting reinstated back to the village after the period of banishment. His family had carried out reconciliation with the victim’s family which has been accepted. I agree that the defendant is remorseful. Although he is not a first offender his first offending is not related or similar to the present offending.
8. I agree with counsel for the defendant that the appropriate punishment should reflect the seriousness of the charge.
9. The culpability level of the defendant from the circumstances of the offending is very low. There was no digital penetration but brief touching of the genitalia. The defendant according to the summary of facts by the Prosecution was not aggressive or pursued the offending further once the victim moved away from his hand.
10. The Prosecution recommends a custodial sentence with a starting point of 2 years. In light of the circumstances of the offending the mitigating factors outweigh the aggravating factors. A non-custodial sentence is appropriate. I agree with the two (2) years’ supervision and the conditions of supervision recommended by counsel for the defendant.
11. The defendant is convicted and sentenced to 2 years’ supervision with the following conditions:
    • (i) Not to be anywhere near girls (other than his own children) of less than 16 years’ old;
    • (ii) Attend the Tama Faufautua Programme;
    • (iii) To carry out 80 hours’ community work; and
    • (iv) Not to re-offend.
      

JUSTICE TUATAGALOA

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^[1] Crimes Act 2013 ss. 50(a) & 59(1).