Police v Sefa [2024] WSSC 58 (23 July 2024)

IN THE SUPREME COURT OF SAMOA
Police v Sefa [2024] WSSC 58 (23 July 2024)

Case name:	Police v Sefa
Citation:	[2024] WSSC 58
Decision date:	23 July 2024
Parties:	POLICE (Informant) v ALATISE OGE SEFA, male of Magiagi (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Senior Justice Nelson
On appeal from:
Order:	The defendant will be convicted on the charge of kidnapping and sentenced to 5 years in prison. Any time spent in custody awaiting sentence is to be deducted from that term. It is further ordered that the defendant be enrolled onto the Sex Offenders Register. Furthermore, that it be a special condition of his enrollment that in future he not be employed or serve in any capacity that may involve or interact with children of any age or gender.
Representation:	J. Leung-Wai for prosecution M. Tuimalealiifano for the defendant
Catchwords:	Kidnapping – first offender – no apology – custodial sentence imposed.
Words and phrases:	“Applied for a discharge without conviction”.
Legislation cited:	Crimes Act 2013, s. 130(a); Sentencing Act 2016, ss. 69; 69(2); 70.
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

ALATISE OGE SEFA, male of Magiagi

Defendant

Counsel: J. Leung-Wai for prosecution
M. Tuimalealiifano for the defendant

Sentence: 23 July 2024

SENTENCE

1. Kidnapping of taxi drivers is sadly a common occurrence in this country. Kidnapping of children is thankfully not and the court must be ever vigilant in its duty to protect the weak and the vulnerable in our community. This applies in particular to our children.
2. Defendant has pleaded guilty to unlawfully kidnapping the 15 year old male complainant in his vehicle at Vaivase Tai on 06 July 2023. The Police summary of facts which is not in dispute says as follows:
   • “The defendant is a 57 year old male of Magiagi. At the time of the offending, the victim was a 15 year old attending College.
   • On 06 July 2023, the victim caught the NUS bus to head to school. However when he arrived at school it was athletics day so he decided to return home.
   • At around 10 a.m. at Vaivase Tai, the victim was on his way home. He was walking alongside the Vaivase Tai road heading to catch a bus. At the time the defendant was travelling along the Vaivase Tai road in his vehicle. When the victim was close to the Magiagi bus stop, the defendant saw the victim and stopped the car right behind the victim.
   • The defendant left the car and grabbed the victim from behind, wrapping both arms around the victim. The defendant carried the victim and threw him into the passenger seat of his vehicle and pinned him down whilst the victim was facedown, facing the back of the car. The defendant then blindfolded the victim and told him not to move or make any noise. The defendant closed the passenger door and went around the driver’s seat and started driving the vehicle, while keeping one arm on the victim to hold him down.
   • The defendant drove the vehicle up the Falealili Cross Island road taking the victim with him without his consent. The defendant parked the car and asked the victim “pe ma o fai se ma tasi” but the victim refused and managed to escape by fleeing the vehicle.
   • The defendant drove off after the victim ran away. The victim sought help from a family in a nearby house and they called his father to come pick him up. The matter was then reported to Police.
   • On 18 September 2023 the defendant was apprehended by Police and was taken to Police Headquarters where he was interviewed and cautioned accordingly.
   • The defendant is charged with one count of kidnapping pursuant to section 130 (a) of the Crimes Act 2013, which carries a maximum penalty of 10 years in prison.
   • At Mentions on 06 November 2023, the defendant pleaded not guilty to the charge against him. However, at the Hearing on 23 May 2024 through counsel he vacated his not guilty plea and entered a guilty plea to the charge. The defendant is a first time offender.”
3. This summary is not being contested by the defence so it can be taken that the defendant has accepted its accuracy.
4. Considering the circumstances of the matter and the age of the complainant there will issue a permanent suppression order prohibiting publication of the victim’s details or anything that can identify him as per usual practice of the court.
5. It is clear from the summary of facts that the defendant kidnapped this 15 year old for sexual purposes. And further that he used violence to effect that purpose. The Victim Impact Report reads:
   • “Sa ou fa’alogoina le fufusi o o’u mata i le taimi sa saisai ai, ae ou te lei ano tele iai ona sa mua ona ou mafaufau i se auala ou te oso ese ai i fafo ma le taavale. Sa ou iloa lava e le sefe lo’u oso i fafo ma le taavale ae sa ou oso lava i fafo a’o alu le taavale ona o lo’u le mautonu, fefe, ma le popolega mo lo’u ola saogalemu i le mea o loo aga’i iai le taavale.
   • Pau lava le manu’aga samaua i lo’u tino o ni maosiosia i le taimi sa ou oso ai i fafo ma le taavale i lo’u fia maua o se fesoasoani.
   • A’afiaga o le mafaufau:
   • O le a’afiaga muamua lava sa oo mai o le fa’ateia o a’u ma le fefe ma le le mautonu po o le a le mea o le afai, ona o se taimi muamua lea ua tupu ai se tulaga faapea ia te a’u, ma e le iai so’u mafaufau o le a tupu se mea faapea i lo’u olaga, e le’i iai fo’i so’u mafaufau e tutupu ni mea faapea i Samoa seia vagana ai nisi o ata ou te iloa i luga o le TV.
   • O nisi aafiaga sa oo mulimuli mai o le loto ita, ma lo’u mā o a’u o le tama ae ua tupu ia te a’u lenei gaioiga faalesolitulafono, ae o le tagata lea sa sa faia lenei solitulafono o se fa’afafine.
   • Pei ua aveese ai ma lo’u fiafia e auai i ni fa’alapotopotoga o tamaiti o lo’u augātupulaga, ua sili ai lo’u nofo i le fale. O auga ia o le fefe i le ma, nei ou faamasani ane ae iloa e tamaiti le tulaga sa ou oo iai (ua avea faamalosia a’u e le faafafine), ma ou ma ai aemaise pei te’i ua faalili ma ulagia a’u i lenei mea.”
6. The offence is serious as evidenced by its 10 year maximum penalty. There has been no apology by the defendant or his family to the victim or the family of the victim indicating a lack of remorse on the defendant’s part for what he did.
7. The defendant through his counsel has applied for a discharge without conviction (“DWOC”). In other words that he not suffer any penalty for his actions. On the basis that a conviction would adversely affect his employment as a senior registered nurse at Moto’otua Hospital. The defendant submits he fulfills the statutory requirements of sections 69 and 70 of the Sentencing Act 2016 and that the consequences of a conviction would be out of all proportion to the gravity of the offending.
8. This is a somewhat surprising application considering the nature of the offence, its maximum penalty and the fact that this offending involves the abduction of a child on his way home from school off the streets of Apia. Conduct that cannot be overlooked or condoned and which in my view constitutes grave offending. It must not be rewarded by an acquittal which is the effect of a DWOC: section 69(2) of the Sentencing Act 2016.
9. Defendant’s counsel in her submission says the defendant is very remorseful for his offending and he is conscious of the impact it has had on the patients he serves and the service he provides. But actions speak louder than words and absent any apology or reconciliation as is normal in our ‘tu ma aga’ faasamoa I give little weight to such assertions.
10. Considering the seriousness of the charge and the circumstances of the offending I have little difficulty rejecting the defendant’s application. The Courts sentence must hold the defendant accountable for the harm done to the victim as recited in the Victim Impact Report. And must hold the defendant accountable to the community that he professes to serve and promote in him responsibility for his actions. Furthermore it must send a loud and clear message to the defendant himself and to those who would contemplate kidnapping children for sexual purposes. Let it be clear that this court has zero tolerance for such behaviour.
11. The maximum penalty as stated by law for what you did is 10 years in prison. This is a case where you a 57 year old mature man forcibly kidnapped a 15 year old off the street while he was walking home, intended to subject him to some kind of sexual acts. The appropriate start point for such behaviour is in my view 6 years in prison, upgraded to 7 years to reflect the defenselessness and the young age of the victim.
12. The defendant is entitled to certain deductions from that start point as noted by his counsel. He has a clean record, a good background of service according to the Probation Service pre-sentence report of serving his family and there are many character references speaking well of him. Usual deduction for such factors of 6 months will apply.
13. Defendant is also entitled to deductions for his guilty plea. Although it was entered late it has saved the victim having to appear in court and relive an obviously traumatic experience. It has also saved having an unnecessary trial and a burden on the Ministry’s limited resources. For those matters I will deduct 18 months making the total deduction for the defendant in mitigation 2 years. From the start point of 7 years this means a balance of sentence of 5 years.
14. The defendant will be convicted on the charge of kidnapping and sentenced to 5 years in prison. Any time spent in custody awaiting sentence is to be deducted from that term.
15. It is further ordered that the defendant be enrolled onto the Sex Offenders Register. Furthermore, that it be a special condition of his enrollment that in future he not be employed or serve in any capacity that may involve or interact with children of any age or gender.
    

SENIOR JUSTICE NELSON