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Police v Talitua [2005] WSSC 19 (26 September 2005)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

SAMUELU TALITUA
of Faleula.
Accused

Counsel: K Koria and P Chang for prosecution
Accused in person

Sentence: 26 September 2005

SENTENCE

The accused is charged under s. 53 of the Crimes Ordinance 1961 with two counts of having sexual intercourse with a girl over the age of twelve and under the age of 16 years to which he has pleaded guilty.

It appears from the pre–sentence report prepared by the probation service that the accused and the victim had known each other for some time as they are both members of the Vaiusu Assembly of God Church. The accused is a deacon of the church and the victim is a member of its youth group. The accused told the probation service that during all that time the victim was looking out for him and he knows that the victim likes him.

On Wednesday afternoon, 02 August 2005, the accused who is a taxi driver went in his taxi to the school where the victim is a student and waited for her. When the victim came out of school she found the accused waiting for her. She got into the accused’s taxi and they drove to Fugalei where the accused took the victim to a secluded area under a tree and had sexual intercourse with her. The victim was apparently a willing and consenting party to what happened. Then on Monday afternoon, 08 August 2005, when the victim came out of school she found the accused waiting for her again in his taxi. They drove to Mulinuu and had sexual intercourse under a tree in a secluded area. Again the victim was a willing and consenting party to what happened. The accused told the probation service that when he had sexual intercourse with the victim he found her not to be a virgin.

The victim who was born on 23 March 1990 is 15 years old and is a student. The accused is a 31 year old male, married with two young children and is a taxi driver by occupation.

As it appears from the pre–sentence report prepared by the probation service, the accused told the probation service that at their church the victim was always looking out for him and he knows that the victim likes him. It is not clear when that started and how long it continued. In his plea in mitigation, the accused said that he did not think the victim was underaged because of her physical built. As the accused has pleaded guilty, the Court has not had the opportunity to observe the victim.

Testimonials for the accused have been submitted from the minister of his church, his employer, his wife and his brother. The minister of the accused’s church says in his testimonial that the accused is an obedient and respectful person. He is also honest in carrying out his duties and obligations to the church. The testimonial from the accused’s employer states that the accused is an honest and reliable person with a good personality. The accused’s employer is also happy to employ the accused as a taxi driver for as long as he wants. The accused’s wife in her testimonial says that her husband is the sole breadwinner of their family and she is concerned about the outcome of this case as they have two young children who both go to school and are dependent on their father for their school fees and general upkeep. She also describes her husband as a kind-hearted and loving person. The accused’s brother says in his testimonial that the accused is a humble, peaceful and kind-hearted person and their family depends on him. It is therefore clear that the accused is a person of good character. However, it is not unknown that sex has been the downfall of some men who are otherwise of good character.

Now there are several mitigating factors in this case. The accused has pleaded guilty to the charges against him. He has also expressed remorsefulness to the Court and to the probation service. His family has also performed a ifoga (formal apology) to the family of the victim and it was accepted. The accused is also a person of good character as shown from his testimonials. He is also a first offender. The victim was also a willing and consenting party to the acts of sexual intercourse which took place. What the accused says that he did not think the victim was underaged because of her physical built may be taken in mitigation but i would not give it too much weight as i do to the other mitigating factors.

On the other hand, I must also take into consideration the seriousness of the offence and the maximum penalty of seven years imprisonment provided for it. This is also a common kind of offence. The age difference of 16 years between the victim who is 15 years of age and the accused who is 31 years of age is also a relevant factor to the criminality of the offending. While it may be said that what happened in this case was a love affair between a married man and a willing underaged girl, the purpose of s 53 which is the protection of young girls who are often in a vulnerable position from sexual abuse and corruption would include the prohibition of a love affair between a mature male adult and a underaged female.

In determining what should be the appropriate sentence in this case, it would be relevant and helpful to refer to the reported Samoan cases where the Courts have had to deal with sentencing for unlawful carnal knowledge. In Police v Aki Tauiliili Faatoafe [1992] WSSC 4 ; [1980-1993] WSLR 481; [1992] WSCA 4 ; [1980-1993] WSLR 537 the accused a 51 year old male was convicted of having unlawful sexual intercourse with a 13 year old girl. The accused forced himself at night time on the victim while she was sleeping and had sexual intercourse with her. The victim was bleeding from between her thighs. She was apparently a virgin at the time. She did not consent to the accused having sexual intercourse with her. Later on the victim was discovered to have become pregnant. The accused pleaded not guilty to the charge of unlawful carnal knowledge. After a defended trial he was convicted and sentenced to two years imprisonment. On appeal, the accused abandoned his appeal against sentence before the Court of Appeal which said that the accused had properly abandoned his appeal against sentence.

In the next case of The Attorney General v Paopaoalii Sagato Ioane [1994] WSCA 20, the accused a 38 year old married man has sexual intercourse with his 13 year old stepdaughter. What happened was that the accused in the early hours of the morning went to where the victim was sleeping, laid on top of her, and forcibly removed her clothes. He then had sexual intercourse with the victim until he was satisfied while at all times the victim was crying. The victim was a virgin and she did not consent to having sexual intercourse with the accused. The accused pleaded guilty to the charge against him and was sentenced to twelve months imprisonment. On appeal, the Court of Appeal increased the sentence to two years imprisonment.

It would also be pertinent to refer to the English case of R v Taylor and Others [1977] 3 All ER 527 which is still regarded in many ways in English Law as a guideline decision when passing sentence in cases of having sexual intercourse with a girl under the age of 16 years; see Nicholson v R [1998] EWCA Crim 1365. In R v Taylor and Others at p.529, Lawton L.J identified the two extremes for this offence. At one extreme is the male youth who has a virtuous relationship with a girl under 16 years. At the other extreme is a man in a supervisory capacity who abuses his position of trust by having sexual intercourse with a girl under 16 for his own gratification. In this situation, a custodial sentence near the maximum of two years imprisonment then provided under English law for this offence ought to be imposed. In between those two extremes is a wide range of circumstances with varying degrees of culpability. Here the sentence would vary depending on the circumstances of the case.

The present case does not fall under either one of the two extremes identified by Lawton L.J in R v Taylor but falls somewhere in between them. It is also to be noted when applying the guidelines in R v Taylor that the maximum penalty of two years imprisonment under English Law at the time of that case is much less than the maximum penalty of seven years imprisonment provided under s. 53 of the Crimes Ordinance 1961. Bearing in mind this difference in maximum penalties, the Taylor guidelines do provide a useful framework for approaching the question of what is the appropriate sentence to be imposed in a case of a male having sexual intercourse with a girl under 16 years.

Having regard to all the relevant circumstances to which I have referred, including the mitigating and aggravating circumstances, the sentences imposed in two of the previous cases for this type of offence, and the purpose behind s. 53, I am of the view that a custodial sentence should be imposed in this case.

The accused is convicted and sentenced to 16 months imprisonment on each of the charges against him. Both sentences to be concurrent.

CHIEF JUSTICE