IN THE SUPREME COURT OF SAMOA
Police v Taumafai SETI [2016] WSSC 41

Case name: 	Police v Taumafai SETI	
		
Citation: 	[2016] WSSC 41	
		
Decision date: 	01 April 2016	
		
Parties: 	Police (Informant) and Taumafai Seti, male of Saanapu and Faleasiu (Defendant)	
		
Hearing date(s): 		
		
File number(s): 		
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Laulusāmanaia Justice Mata Tuatagaloa 	
		
On appeal from:		
		
Order:	Taumafai Seti is convicted of each offending and sentenced to 7 ½ months imprisonment. The terms to be served concurrently.   	
		
Representation: 	Ms Ioane for the Prosecution
Defendant in Person	
		
Catchwords: 	Unlawful sexual intercourse – victim under 16 years of age – victim pregnant – victim instigated contact – consensual – first offender – apology carried out – early guilty plea – seven year age gap – incident occurred twice	
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:	Police v Anoaí Pati, Unreported, 10 April 2014	
	Police v Taliioe Lemi, Unreported, 15 May 2014
Police v Mekisateko Apineru, Unreported, 22 September 2014
Police v Gaugatao Faasipa, Unreported, 3 October 2014
Police v Olive Puafua, Unreported, 3 June 2015
Police v Taulapapa [2014] WSSC 66
	
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P  O  L  I  C  E
Informant

AND:

TAUMAFAI SETI, male of Saanapu and Faleasiu
Defendant

Counsel:		
Ms Ioane for the Prosecution
Defendant in Person

Date:	01 April 2016

sentence of Justice tuatagaloa
1. 	Taumafai Seti you now appear for sentence after pleading guilty to two counts of having unlawful sexual intercourse with a girl under 16 years old.  The penalty for each offending is maximum imprisonment term of 10 years.
2. 	You have confirmed the summary of facts which basically say that:
•	You had unlawful sexual intercourse with this girl twice on 19 June and 27 June 2015. As a result the girl became pregnant. 
3. 	The girl was 15 years old and you were 22 years old.  The accused and victim were in a boyfriend - girlfriend relationship. The pre-sentence report (PSR) says since end of 2014 and summary of facts says May 2015.  The accused told probation in PSR that when everyone of the victim’s family were at bingo you would meet the victim in their front garden and it was there that you had sexual intercourse.   The summary of facts says that the victim would text you when her parents have gone to bingo and was only her and younger siblings at home. 
4. 	It is clear from the summary of facts that the victim instigated contact with the accused when her parents had gone to bingo and she was home alone with her siblings. It is also clear from the summary of facts that the sexual intercourse between the accused and victim was consensual. 
5. 	The law places responsibility on older defendants that because of their age they would be more mature and presumably know better than the younger victims.  As such, the law forbids sexual intercourse with girls under 16 years old. The law is also to protect young girls from themselves.
6. 	The prosecution in their sentencing memorandum always advocates custodial sentence as a means of deterrence. They say that the court in sexual offending against girls under 16 years old have continuously imposed custodial sentences. They are quite right the court have continuously but have not always imposed custodial sentences on sexual offending of this nature. The reason being that the Court considers the circumstances of each case accordingly.
7. 	The prosecution referred the court to Police v Anoaí Pati- 17 year old defendant and 13 year old victim. Defendant sentenced to 12 months supervision; Police v Taliioe Lemi- defendant 17 years old, victim 14 years old. Defendant and victim first cousins and was charged with 5 counts of unlawful sexual intercourse. The 2 months 15 days defendant was in custody was treated as time served and was also imposed with 18 months supervision; Police v Mekisateko Apineru  - defendant 22 years old, victim 14 years old with a starting point of 2 years and end sentence of 9 months imprisonment; Police v Gaugatao Faasipa- defendant 17 years old victim 14 years old. Defendant adopted by the victim’s family and was charged with 6 counts of unlawful sexual connection was given a starting point of 12 months and end sentence of 6 months imprisonment to be served concurrently.
8. 	The following aggravating features of this offending are:
•	Age Disparity - There is seven years disparity between the accused and that of the victim.  The presumption is, the bigger the disparity in age the more vulnerable the victim is.  This may be so, but it is only one factor when we need to look at the circumstances of this case to truly gauge the vulnerability of the victim. The victim initiated or instigated the meetings with the accused by her texting him when she was alone at home with her siblings.
•	The accused had sexual intercourse not once but twice with the victim. What must be realized especially where there is a boyfriend-girlfriend relationship is that sexual intercourse where it is consensual and in secrecy will always happened more often than once until it was found out or the girl becomes pregnant.
•	Impact on the victim – It is more often than not that young girls will always fall pregnant and this victim is no different. The most impact is that her education is affected and she is with child at a young age.  
9. 	The mitigating features to the accused favour are:
•	First offender status and obviously of previous good character;
•	Apology by the accused family to the victim’s parents was accepted;
•	Early plea of guilty.
10. 	The prosecution submits for the court to take the approach in the case of Gaugatao Fasipa (supra) and impose a custodial sentence for the sole reason that the victim got pregnant.  The prosecution failed to consider the overall circumstances of that case which makes it so different from the present case. The disparity in age between defendant and victim is 3 years as opposed to 7 years in the present case. The defendant Gaugatao was adopted by the victim’s family so obviously there is a breach of trust. Furthermore the starting point in Gaugatao was 12 months and they are asking the court for a starting point of 18 months in the present case. 
11. 	The Court has on unlawful sexual connection imposed sentences which range from supervision and community service to custodial sentences.  I continue to stress that deterrence is not only by way of custodial sentence but can also be achieved by way of non-custodial sentence.  This should never be seen as the Court taking such offending lightly.  
12. 	In the case between Police v Olive Puafua, the victim was 15 years old, defendant was 18 years old.  The most aggravating, aside from age in that case, was that the defendant was the uncle of the victim and yet the Court on the circumstances of that particular case imposed a non-custodial sentence.
13. 	However, in the case of Police v Taulapapa the accused was 30 years’ old and the victim was 15 years’ old.  They were in a boyfriend/girlfriend relationship and ended up living as husband and wife.  The Court imposed supervision and community service in that case.  Recently in Police v Oliva Sale the Court imposed 12 months supervision with special conditions which one of those conditions was 100 hours community service.
14. 	Nevertheless, in the circumstances of this case a custodial sentence is appropriate with a starting point of 18 months less 6 months for previous good behavior, 1 month for the apology  and 1/3 discount for early guilty pleas. This leaves 7 ½ months or 30 weeks.
15. 	The accused, Taumafai Seti is convicted of each offending and sentenced to 7 ½ months imprisonment. The terms to be served concurrently. 
  
_________________________
JUSTICE TUATAGALOA