THE SUPREME COURT OF SAMOA
Police v Mataafa [2017] WSSC 166

Case name: 	Police v Mataafa	
		
Citation: 	[2017] WSSC 166	
		
Sentence date: 	12 December  2017	
		
Parties: 
	POLICE v SUITUPE LIO MATAAFA male of  Fagaloa and Vailele 
	
Hearing date(s): 		
		
File number(s): 		
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	The Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Tafaoimalo Leilani Tuala-Warren	
		
On appeal from:
Order:	-	For the charge of sexual connection with a child, the accused is convicted and sentenced to 6 years imprisonment. For the charge of unlawful sexual connection the accused is convicted and sentenced to 3½ years imprisonment. Both sentences to be served concurrently so that he is sentenced in total to 6 years imprisonment. Any time spent in custody to be deducted	
		
Representation: 	A Matalasi for Prosecution
M Soonalole for the Accused
	
Catchwords: 	Sexual Conduct with a child
Unlawful Sexual Connection
	
Words and phrases:	Finally in terms of orders, there will be an order permanently suppressing or prohibiting the publication of the names of the victims.  The suppression order does not relate to the defendant
	
Legislation cited:	Crimes Act 2013, section 58(1) and 50(b)
	
Cases cited:	Attorney General v Lua [2016] WSCA 1 (19 February 2016)
Police v P [2009] WSSC 16 (2 March 2009)	
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

SUITUPE LIO MATAAFA male of Fagaloa and Vailele
Accused

Counsel:
A Matalasi for Prosecution
M Soonalole for the Accused

Sentence: 12 December 2017
SENTENCE
THE NAMES OF THE VICTIMS ARE PERMANENTLY SUPPRESSED.
The charges
1.	The accused appears for sentence on 2 charges, one of sexual conduct with a child under 12 years pursuant to sections 58(1) and 50(b), of the Crimes Act 2013 which carries a maximum penalty of life imprisonment and one of unlawful sexual connection pursuant to s.49(3) of the Crimes Act 2013, which carries a maximum penalty of 14 years imprisonment. 
2.	There are two victims of this offending. The first victim is 11 years old. The second victim is 14 years old.  Both are the daughters of the accused’s nephew. 
3.	The accused changed his plea part way through his trial on 9 November 2017.
The offending 
4.	According to the summary of facts admitted by the accused, sometime between 1 January 2016 and 31 December 2016, the accused went to the victim’s house intoxicated and slept there. While the 11 year old victim was sleeping, the accused touched and caressed her vagina. The first victim tried to remove his hand but he got into the victim’s mosquito net. He spread the 14 year old’s legs and sucked her vagina. When he finished he went to the victims’ parents house and had tea.
The accused 
5.	As shown in the pre-sentence report, the accused is 50 years old, married with four children. He is unemployed.
6.	According to him, the victim approached him first in his mosquito net.
7.	His wife remains supportive of him.
8.	He has a previous conviction for possession of narcotics.
9.	He says that he and the victim’s parents have reconciled.
The victims 
10.	According to the victim impact report, the 11 year old victim says that her vagina felt sore from what the accused did to her. She tries not to think of it and has forgotten what has happened.
11.	The second victim who is 14 years old says she was unhappy and worried when the accused did what he did to her. She is sad that this has happened.
Aggravating features of the offending
12.	The aggravating features of this offending are firstly, the gross breach of trust. There are two victims, and the accused is the uncle of their father. The breach of trust in this case is significant. The Sentencing Act 2016 in section 8 directs the Court in cases involving violence against persons under 18 years to consider, the magnitude of the breach of the relationship of trust between the victims and the accused. This is a case of sexual violence.
13.	The ages of the victims,  is another aggravating factor. One was 11 years old and the other 14 years old at the time the accused committed these offences on them. The Sentencing Act 2016, section 7(1)(g) further reinforces as an aggravating factor, the vulnerability of the victims because of their ages,  which was known to the accused. 
14.	It is aggravating that the age gap between the accused and the first victim is 39 years, and the age gap between the accused and the second victim is 36 years.
15.	Section 17 of the Family Safety Act 2013 directs the Court to consider as an aggravating factor against the accused if an offence took place within the context of a domestic relationship. “Domestic relationship” is defined in section 2 of the same Act as including where the victim and accused are family members related by marriage or blood or they are a person who has or had parental responsibility for that child. The accused is related by blood to the victims. He is the brother of the grandmother of the victims. It is inexcusable behaviour by the accused towards these young victims.
16.	The degree of premeditation in the commission of these offences is an aggravating feature.  The accused went and slept in the same house with the victims and got into their mosquito net.
17.	The psychological impact on the victims is taken into account as an aggravating feature. The impacts are seen in the Victim impact reports of the victims. They were scared, worried and unhappy when the accused did this to them.
Mitigating Factors 
18.	I consider that it is a mitigating factor that he has apologised to the victim’s parents and has reconciled with them.
19.	I will also give him the benefit of his belated guilty plea, part way through the trial.
Discussion
20.	In this case, the accused is facing life imprisonment for having sexual connection with a child under 12 years old. This is a high penalty given the young ages of the victims.
21.	Prosecution has submitted that a starting point of 11 years imprisonment is appropriate for the charge of sexual connection with a child under 12 years old.
22.	Prosecution submits that a starting point of 10 years is appropriate for the charge of unlawful sexual connection. 
23.	In relation to sexual connection with a child under 12 years old, I use the bands set out by the Court of Appeal  in Attorney General v Lua [2016] WSCA 1 (19 February 2016). The bands are;
Band one:2-6 years-appropriate where the offending is at the lower end of the spectrum and there is an absence of aggravating features of their presence is limited.
Band two: 5-12 years-where the offending is of moderate seriousness and involves two or three aggravating features.
Band three: 11 years –life imprisonment-where the offending is the most serious of the kind, for example it involves offending against multiple victims over a significant period in the presence of serious aggravating features.
24.	I will firstly hand down a sentence in relation to the sexual connection with a child charge.  I place his offending in band two: 5-12 years (where the offending is of moderate seriousness and involves two or three aggravating features).
25.	I will adopt the totality approach and give one sentence for the sexual connection with a child charge, and charge of unlawful sexual connection in relation to the 14 year old victim. Sapolu CJ explained this approach in Police v P [2009] WSSC 16 (2 March 2009), “ you take into consideration the totality of the offending by the accused in terms of all the offences on which he is appearing for sentence. This is also relevant in setting a starting point for sentence”. 
26.	In the New Zealand Supreme Court decision in R v Booth [2017] 1 NZLR 223 at 240, Young J stated in terms of concurrent and cumulative sentences:
“[44]  When an offender is sentenced to imprisonment for more than one offence, the sentences can be imposed either concurrently (so that they are served together) or cumulatively (so that they are served one after another). This is addressed in the Sentencing Act by ss 83–85.
[45]  These sections apply in two situations. In the first, an offender is sentenced on one occasion (and thus by one judge) in respect of multiple offences. In the second, an offender already sentenced to, and serving, a prison sentence is sentenced on a separate occasion for other offending. Despite the clumsiness of the expressions, I will refer to the first situation as “single occasion sentencing” and the second as “separate occasion sentencing”.
[46]  In both situations – that is, single and separate occasion sentencing – the sentencing judge is required to have regard to the “totality” of the offending. The overall sentence imposed must reflect the seriousness of that totality and this is so irrespective of whether the sentences are structured as concurrent or cumulative. So if concurrent sentences are imposed, the most serious offence receives the sentence appropriate for the totality of the offending. For cumulative sentences, it is the length of the sentences, when added together, which reflect that totality. Therefore, the practical effect of the totality principle is that the effective sentence of imprisonment will be the same irrespective of whether the sentences are structured cumulatively or concurrently.”
27.	For the lead offence of sexual connection with a child under 12 years old, having therefore considered the aggravating features relating to this offending, in particular the gross breach of trust by someone so mature and related to the victims, and the young age of the victim, I take 8 years imprisonment as the starting point for sentence. I deduct 6 months for his apology to the victim’s parents. I deduct 1 ½ years or 20% for his belated guilty pleas. The end sentence is 6 years imprisonment.
28.	For the offence of unlawful sexual connection on the 14 year old victim, the accused is convicted and sentenced to 3 ½ years imprisonment.
The result
29.	For the charge of sexual connection with a child, the accused is convicted and sentenced to 6 years imprisonment. 
30.	For the charge of unlawful sexual connection the accused is convicted and sentenced to 3 ½ years imprisonment.
31.	Both sentences to be served concurrently so that he is sentenced in total to 6 years imprisonment.
32.	Any time spent in custody to be deducted.
33.	Finally in terms of orders, there will be an order permanently suppressing or prohibiting the publication of the names of the victims.  The suppression order does not relate to the defendant. 
JUSTICE TAFAOIMALO LEILANI TUALA-WARREN