IN THE SUPREME COURT OF SAMOA
Police v Lilo [2015] WSSC 241

Case name: 	Police v Lilo	
		
Citation: 	[2015] WSSC 241	
		
Decision date: 	06 November  2015	
		
Parties: 	POLICE (Prosecution)
LIU LILO, male of Saleilua Falealili. (First Defendant) and TUITAPU LILO female of Saleilua Falealili. (Second Defendant)	
		
Hearing date(s): 	-	
		
File number(s): 	S3669/14, S3668/14	
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Nelson	
		
On appeal from:		
		
Order:	Both defendants will accordingly be convicted and in respect of the mother Tuitapu Lilo she will be ordered to come up for sentence within a period of 2 years on the following special conditions: the first is not to reoffend; she is to stay away from her co-defendant son; she is to live only where approved by probation office.  Would there be any other special conditions that the probation office feel I should make part of the conditions of the sentence? (Probation officer said no).  Report as directed by probation office as and when required by the office.
In respect of the co-defendant Liu Lilo he will be placed on 12 months supervision.  Special conditions of his supervision firstly 100 hours community service.  Secondly no alcohol of any form during the period of supervision.  Thirdly he is to stay away from his mother the co-defendant.  And he is to live only where approved by the probation office.  He is further to attend any rehab programs as directed by the office.  In addition he is not to associate with any younger female siblings of his family without appropriate parental or other supervision.  Finally he is to obey all other instructions given him by the probation office during the period of supervision.	
		
Representation: 	L Tavita for prosecution
K Kruse for first defendant
M V Peteru for second defendant	
		
Catchwords: 	-	
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:
		
POLICE
Prosecution

AND:

	LIU LILO, female of Saleilua Falealili.
First Defendant

AND:

	TUITAPU LILO, female of Saleilua Falealili.
Second Defendant

Counsel:	L Tavita for prosecution
K Kruse for first defendant 
M V Peteru for second defendant

Sentence:	06 November 2015

SENTENCE
1	Defendants have pleaded guilty to one count each of incest.  That offence carries a 20 year maximum penalty at law.  It is therefore a very serious charge.  The police summary of facts which is not contested by the defendants indicates the first defendant Liu Lilo is 22 years of age, a single male of Saleilua, the second defendant Tuitapu Lilo is a 50 year old married female also of Saleilua, she is the first defendants biological mother.  She has five children and stays at home and renders domestic duties.  She had at the time of offending a male partner her husband.  At all material times the defendants were living together in the same household and had been for some time.  
2	 Some time during the month of August 2014 the first defendant Liu returned home late at night intoxicated.  His mother was at home sleeping with her young daughter the younger sister of the first defendant.  At the time the second defendants husband was not present.  The first defendant approached the second defendant and asked to have sex.  A request which she agreed to.  The couple engaged in consensual intercourse after which the first defendant left the mosquito net.  They were however spotted by a friend of the first defendant who happened to be in the vicinity and this is how the matter found its way to the police. 
3	The prosecution are seeking a prison term for the son but not for the mother.  They cite in support various instances where this court has imprisoned defendants for the crime of incest.  Counsels for both the defendants have submitted that imprisonment terms are in the circumstances not an appropriate method of dealing with this situation.  
4	It is trite law to say that each case turns on its own facts.  Having reviewed the facts of this matter I note that there are significant differences between this case and the sort of cases cited by prosecution in support of their submission.  This is not a case of betrayal by a father of the love and trust of a young daughter. Or of an older family member or sibling taking advantage of a younger vulnerable family member.  
5	It is also noted mental health assessments have been carried out on both defendants.  For the mother there has been two assessments.  These both concur that she is a person of very low intelligence with a mental age of less than 10 years old. She attended school only to primary level and is according to the reports that I have read not capable of simple arithmetic calculations.  The report states she is able to make simple decisions for herself and in relation to chores in the family but has much difficulty writing and cannot read.  The general consensus of opinion is she is very quiet keeps to herself and does not socialize.  She attends to the functions of a mother and as a family member goes to church and afterwards goes straight home.  She has a simple life and in fact in common Samoan parlance she would be described as a simple person (“le atoatoa le mafaufau”).  If there was any taking advantage of in this case it was in respect of her.  
6	Her co-defendant son is only marginally better.  His assessment shows him to have the intelligence level of a teenager.  He has also had a very limited education up to Year 6 level according to his pre-sentence report.  He is a taulealea in his family and as such attends to the normal duties in relation to the family plantation etc.  He is described by his relatives as quiet and hardworking.  On this particular occasion he had with his brother consumed a large bottle of vodka and a quantity of beer.  A substantial quantity of alcohol by any measure.  After that, he went home and committed this offending.  Whatever little judgment he had was obviously impaired by his condition.  
7	Both defendants not surprisingly have clean police records.  The family of the female defendant has paid a large village fine of five (5) beasts and $5,000.  The male defendant was unable to pay his fine which was comparable and he has been banished by his village.  
8	The circumstances of this matter are in my assessment exceptional.  This is a case of one-off offending.  At the end of the day by physically mature but intellectually challenged adults.  The act consisted of one count of consensual intercourse.  I am satisfied from what I have seen and heard that they fully regret their decision they are remorseful and are unlikely to reoffend.  
9	O le sao lea o le tulaga o le lua mataupu, o iai se salamō i le lua mea na fai pe leai Lilo? (Defendant said he is remorseful).  E te toe faia se mea faapea? (Defendant apologized and said he will never do this again).  Faafefea oe tina, o lena e te malamalama e leaga lau mea na fai a? (Defendant said yes).  E sese lau mea na fai.  E te toe faia se mea faapea pe leai? (Defendant said she will never do this again).  
10	Aua le toe faia se mea faapea.  I lalo o le tulafono e mafai ona ave oulua i le falepuipui i le asō mo se vaitaimi e  le silia i le 20 tausaga.  E fai a sina matuia o le solitulafono lea na lua faia.  Atonu ua sasi foi le lua faaiuga i le mea lenei, ae mafai ona tuu atu le avanoa ia oulua e faasao ai oulua mai le falepuipui ae aua nei toe faia e seisi o oulua se mea fapaea.  Ua lua malamalama? (Defendants said yes).  
11	It would not in my view be just to send either of these defendants to prison for their behaviour.  I am also mindful how imprisonment could severely affect them given their respective intellectual capacities.  The record should note I have given them an appropriate warning of the consequences of any repetition of this kind of unsavoury behaviour.  I am satisfied they fully understand the implications and the message.  
12	Both defendants will accordingly be convicted and in respect of the mother Tuitapu Lilo she will be ordered to come up for sentence within a period of 2 years on the following special conditions: the first is not to reoffend; she is to stay away from her co-defendant son; she is to live only where approved by probation office.  Would there be any other special conditions that the probation office feel I should make part of the conditions of the sentence? (Probation officer said no).  Report as directed by probation office as and when required by the office.  Le alii ofisa lea e alala mai o le ofisa faanofo vaavaaia, a maea fai se lua tala sei faamanino atu tulaga ia i lau susuga Tuitapu, ua e malamalama? (Defendant said yes).  E lua tausaga lea e te i lalo ai i le vaavaaiga a le tulafono.  E sa ona e toe solitulafono pe toe molia mai oe i le tulafono i totonu o le 2 tausaga.  A toe aumai oe i luma o le faamasinoga i totonu o le 2 tausaga lena ua toe laga loa le mataupu lea ma fai loa iai seisi faaiuga.  Ma e mafai ona ou faia tu ia oe e toe aumai loa oe, Tafaigata loa. Ua e malamalama? (Defendant said yes).  
13	In respect of the co-defendant Liu Lilo he will be placed on 12 months supervision.  Special conditions of his supervision firstly 100 hours community service.  Secondly no alcohol of any form during the period of supervision.  Thirdly he is to stay away from his mother the co-defendant.  And he is to live only where approved by the probation office.  He is further to attend any rehab programs as directed by the office.  In addition he is not to associate with any younger female siblings of his family without appropriate parental or other supervision.  Finally he is to obey all other instructions given him by the probation office during the period of supervision.  Ua e malamalama i le faaiuga o lau mataupu Liu? (Defendant said yes).  Ia le alii ofisa foi lea a le ofisa faanofo vaavaaia, e tatau ona fai ai sau tala.  A iai se mea e te le malamalama ai atonu o lena e iai lau loia e mafai ona faamalamalama atu ia oe.  Ao le mea taua lava ia e usitai i tuutuuga lea ua tuu atu e le faamasinoga mo le taimi lea e te nofo  vaavaaia ai.  Aua na o le tasi le tausaga lea e nofo vaavaaia ai.  Usitai iai, aua a e le usitai iai e toe molia mai oe e le ofisa.  A toe molia mai foi oe e le ofisa ia o lena ua uma ona tau atu le faaiuga.  

JUSTICE NELSON