Police v Pasi [2023] WSSC 24 (26 April 2023)

IN THE SUPREME COURT OF SAMOA
Police v Pasi [2023] WSSC 24 (26 April 2023)

Case name:	Police v Pasi
Citation:	[2023] WSSC 24
Decision date:	26 April 2023
Parties:	POLICE (Prosecution) v IE’U LELEIMALEFAGA PASI, male of Aleisa & Salesatele Falealili
Hearing date(s):
File number(s):	S495/21, S540/21, S541/21, S542/21, S543/21 & S544/21.
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Michael Clarke
On appeal from:
Order:	- Order prohibiting publication in news media or any other publicly accessible database the name and any identifying details of the victim. - Accordingly, you are convicted and sentenced as follows, less time remanded in custody for this matter: - Adopting information S495/21 as the lead charge on a totality basis, you are convicted and sentenced to 1 year 11 months imprisonment and - And all remaining charges, 6 months imprisonment concurrent to S495/21. - From the Court file it appears that you were remanded in custody from 1 March 2021 until you were recalled to serve your imprisonment term for murder in about September 2021. The calculation of your remand in custody will be a matter for the Prison Services to determine so that they can arrive on your end of sentence date.
Representation:	V. Faasii for Prosecution M. Tuimalealiifano for the Accused
Catchwords:	Sexual connection – occurred multiple times – previous convictions (of different nature) – 21 year age disparity – vulnerability of victim – early guilty pleas – custodial sentence.
Words and phrases:	“Sexual connection with a young person under 16 years of age” – accused and victim in a relationship – “committed offence while on parole”.
Legislation cited:	Crimes Act 2013, s. 59(1); Sentencing Act 2016, s. 7(c).
Cases cited:	Hall v Police [2020] NZHC 1987 (7 August 2020); Police v Olo [2017] WSSC 10 Police v Pulega [2021] WSSC 76; R v Thomas [2019] 257 (29 June 2020); Rerekura v New Zealand Police [2021] NZHC 273 (24 February 2021); Vermon v R [2010] NZCA 398.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E

Prosecution

A N D

IE’U LELEIMALEFAGA PASI male Aleisa & Salesatele Falealili.

Accused

Counsel: V Faasii for Prosecution

M Tuimalealiifano for the Accused

Sentence: 26 April 2023

S E N T E N C E

The Charge:

1. Ie’u, you appear for sentence on 12 charges of sexual connection with a young person under 16 contrary to subsection 59(1) of the Crimes Act 2013 which carries a maximum penalty of 10 years imprisonment. As is usual for cases such as this, permanent name suppression orders are hereby issued prohibiting the publication of the name and any identifying details of the victim in any news media or other publicly accessible forum.

The Offending:

2. According to the Prosecution Summary of Facts accepted by you through your counsel, you had sexual intercourse with the victim on 12 separate occasions between about the 28 October 2020 and the 1 January 2021. The sexual connection between you and the victim is set out fully in the Summary of Facts that has been read to you. I do not need to repeat those today for the purposes of sentencing. At the time of committing your offending, the victim was 15 years of age. You were in what is described as a boyfriend and girlfriend relationship with the victim.

The Accused:

3. According to the Summary of Facts, you are a 39 year old man. You were raised in Falealili and are the eldest of 5 siblings. You appear to have completed High School and went on to Samoa Polytechnic studying computer courses for 2 years. You had a brief rugby career which was interrupted when you were convicted of murder in 2003. After serving 13 years in prison, you were granted parole in 2016.
4. You have a lengthy prior conviction record starting in 2003 with murder. You have also convictions for burglary, theft, escape and possession of narcotics. These however are for different offences and I will not uplift your start point for those offences.

The Victim:

5. The victim has given a Victim Impact Report. She speaks of her worry and fear of you the whole time you were together. Although the victim speaks of non-consensual sexual intercourse, I do not take those remarks into account as you are not being sentenced for rape.

Aggravating Features of the Offending:

6. The aggravating features of your offending are:
   • Your age disparity of 21 years with the victim;
   • The victim’s vulnerability given her age and the impact of your offending; and
   • Multiple offences over a period of approximately 2 months.
7. There are no mitigating factors to your offending. That the victim consented or that she was 15 years and 9 months of age are not mitigating factors.

Aggravating Features in respect of the Offender:

8. Aggravating to you personally as an offender is that you committed your offending while on parole for murder (see: section 7(c) Sentencing Act 2016 and Vermon v R [2010] NZCA 398] at paragraphs 14, 15 and 16).

Mitigating Factors Offender:

9. You indicated in your Pre-Sentence Report that you were beaten by the victim’s family. It is unclear on your account to the Probation Service why this occurred. I am also not prepared to accept this as a fact possibly mitigating your sentence. There are no independent medical records for example to confirm this. I have also carefully read the Pre-Sentence Report and cannot see any statement of remorse by you made to the Probation Service. Accordingly, a discount for remorse will not be extended. What remorse you may feel for your offending is noted in your guilty plea and factored there.
10. Prosecution accepts that your end sentence should reflect a deduction for your time recalled on the charge of murder. I accept that such a deduction is appropriate. I refer to the persuasive New Zealand authorities Hall v Police [2020] NZHC 1987 (7 August 2020); R v Thomas [2019] 257 (29 June 2020) and Rerekura v New Zealand Police [2021] NZHC 273 (24 February 2021). This however is not a one for one but a 2/3rds deduction on the recall period you have served. You have been recalled since September 2021, a period of approximately 20 months. A 13 month deduction will be made.
11. Although counsel refers to your remorse for your offending, you did not express that to the probation service. Whatever remorse you may feel there is reflected in the guilty plea that you have entered.
12. The only mitigating factor personal to you otherwise is your guilty pleas.

Discussion:

13. Prosecution seeks a 3 year start point with an uplift of 6 months for your prior convictions. Your counsel seeks a non-custodial sentence.
14. There is no questions that given the seriousness of your offending, the number of charges against you, the duration of your offending in that it was not isolated but ongoing over a period of 2 months or so and that you committed this offending whilst on for murder, a custodial sentence is warranted. While you have numerous prior convictions including for murder and were also on parole, that has not at all dissuaded you from continuing to re-offend. The custodial sentence is to deter you from continuing to offend and to protect the community from you.
15. I have considered the authorities referred to me by both counsel. I have also referred to other authorities such as Police v Pulega [2021] WSSC 76 where on a single charge of sexual connection between the 40 year old defendant and 15 year old victim, a 3 year 4 months start point was adopted. I have also had regard to Police v Olo [2017] WSSC 10 where the 57 year old defendant was sentenced on 6 charges of sexual connection with the 15 year old victim and a 4 year start point was adopted. I note that both these further cases had distinguishing factors different to your case.
16. Having regard to the authorities that I have been referred to and those that I have referred to, I accept that a 3 year start point for sentence is appropriate on a totality basis. From that start point, I uplift your sentence by 6 months for your offending while on parole. I deduct 13 months for your recall on the charge of murder and 6 months for your guilty plea on the withdrawal of the other charges against you leaving an end sentence of 1 year 11 months imprisonment.

The penalty:

17. Accordingly, you are convicted and sentenced as follows, less time remanded in custody for this matter:
    • Adopting information S495/21 as the lead charge on a totality basis, you are convicted and sentenced to 1 year 11 months imprisonment and
    • And all remaining charges, 6 months imprisonment concurrent to S495/21.
18. From the Court file it appears that you were remanded in custody from 1 March 2021 until you were recalled to serve your imprisonment term for murder in about September 2021. The calculation of your remand in custody will be a matter for the Prison Services to determine so that they can arrive on your end of sentence date.

JUSTICE CLARKE