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Police v TLT [2025] WSSC 73 (14 May 2025)

IN THE SUPREME COURT OF SAMOA
Police v TLT [2025] WSSC 73 (14 May 2025)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

TLT

Defendant

Counsel: L Su’a-Mailo for Prosecution
T Leavai for the Defendant

Sentence: 14 May 2025

SENTENCING OF TUATAGALOA J

The charges

1. The defendant appears for sentence on the following charges:
   • (i) Rape (x1) which carries maximum penalty of life imprisonment;^[1]and
   • (ii) Sexual conduct with a dependent family member under 21 years (x2) which carries a maximum penalty of 14 years’ imprisonment.^[2]

The offending

2. The defendant confirms the summary of facts by the Prosecution which basically says that:
   • The defendant raped the victim and had sexual intercourse with the victim, a dependent family member under 21 years, in the period between 1 May and 31 December 2021;
   • Between 1 December and 31 December 2022, the defendant again had sexual intercourse with the victim a dependent family member under 21 years;
   • All offending took place at the defendant’s home at x-village, Savaii when the defendant’s wife was not at home;
   • The victim at the time was a member of the defendant’s household consisting of the defendant, his wife, his daughter and the wife’s elderly mother. The victim stayed with the defendant’s mother-in-law and daughter in the front house while the defendant and his wife lived in the house behind.

The defendant

3. The defendant at the time of the offending was 43 years’ old and married to a cousin of the victim’s father and they have two children. The pre-sentence report (PSR) says the defendant finished his education in Year 10 at the **College.
4. There are letters from the defendant’s mother and his wife that both mention an ifoga they carried out to the victim’s parents recently on 9 March 2025. This is not confirmed in the PSR dated 27 January 2025 as the ifoga was done after the PSR. Counsel for the defendant in her submissions says that the victim’s parents informed the prosecuting counsel of the ifoga. However, the defendant in PSR told Probation Services that his parents had already approached the victim’s family and apologised but the victim’s mother told probation that there was no such apology but the only reason the defendant’s parents visited them was not to apologise but to ask them to have the matter withdrawn.
5. The defendant is a first offender. First offender status is linked to previous good character which is a mitigating factor. The testimonials of his Church Ministers (AOG and Methodist), wife, mother, the pulenuu and members of y-village confirm the defendant’s previous good character. They all speak of the defendant as an active member of the church and village who had served the village and church well, a hardworking person who provides for his family.
6. There is also a letter from the defendant’s daughter who allegedly has special needs and pleads for the return of the defendant as he is the one whom she depends on a lot, especially when she gets sick. The letter does not say what she suffers from. The PSR refers to the defendant having one daughter who stays with the grandmother (wife’s ailing mother) and the victim in the front house. The defendant never mentioned to probation services that he has a daughter with special needs and largely depends on him. I find this hard to accept that a daughter will depend more on the father to care for her needs than on the mother. The summary of facts at [6] refers to the defendant daughter named [**] as follows - “The defendant’s wife approached the victim’s father, asking if she could stay with her to help her daughter, [**], care for her ill mother”. No mention of [**] being sick or suffering from some sort of illness or having some special needs. In any event, the letter from the daughter is taken and considered the same as all other written testimonials as to previous good character of the defendant.

The victim

7. The victim from the prosecution’s summary of facts was 15 years old at the time. The summary of facts tells of the ordeal that this young victim encountered at the times she and the defendant had sexual intercourse. That is, when she was raped, she could not walk back to the house due to the intense pain to her genitals. She even said to the defendant during the rape that she was in pain but the defendant did not stop. The third and last time the defendant had sexual intercourse with the victim the victim told the defendant that her genitalia hurts but the defendant told her that he was almost done.
8. The victim was at the time attending school but she stopped when this matter came to light for fear of being ridiculed.

The aggravating and mitigating factors

9. I accept the following as aggravating factors of this offending:
   • (i) Familial relationship between that of the defendant and the victim albeit by marriage. The victim was part of the defendant and his wife’s household.
   • (ii) There is a breach of trust – The defendant wife asked the victim’s parents for the victim to live with them to help their daughter with the ailing mother. The victim’s parents agree because the defendant wife is family (cousins with victim’s father) and by doing so had entrusted the defendant and his wife with the responsibility of looking after their daughter.
   • (iii) The offending was pre-meditated as it took place when the wife was not home. The defendant used Facebook Messenger to put his intentions in play by telling the victim where to go and what time.
   • (iv) The age disparity of 28 years between the defendant and victim. The bigger the age disparity the more vulnerable the victim is. The age disparity also shows the bigger power imbalance and the level of control the defendant had over the victim.
   • (v) Multiple offending – It was not once but three times.
   • (vi) That it took place in the home environment where our young ones should feel safe and be protected from such predatory behaviour.
   • (vii) Violence is inherent in any rape because it is committed without consent and therefore it is done with force. There was much force used as the victim could not walk back to the house she stayed due to intense pain to her genitals (see para.[6] SoF)
   • (viii) Impact of the offending – The victim as a result no longer attended school due to embarrassment and fear of how others perceive her. The offending has deprived her of the opportunity to fully experience her youthful years before adulthood.
10. And for mitigating factors:
    • (i) I accept and will place some weight on the ifoga by the defendant parents and wife to the victim’s parents;
    • (ii) I will also consider the village monetary fine imposed and paid and the banishment from the wife’s village that he was living in.
    • (iii) The defendant first offender status and the written testimonials of the person he was prior to the offending.
    • (iv) For the guilty plea although given much later after the matter has been in court since 2023. That is, the defendant may have pleaded guilty in November 2024 but wanted to change his plea back to not guilty delaying sentencing until his guilty plea was maintained and confirmed by current counsel who is the defendant second counsel. Nevertheless, I will give a discount of 25%.
11. I do not accept his apology to the victim conveyed in the letters as genuine but rather more for his benefit in terms of sentencing and I therefore also do not accept that he is truly remorseful for what he did. The PSR dated 25 January 2025 has the defendant putting the blame on the victim that she initiated what took place and that they were all consensual despite having pleaded guilty. This is not a sign of remorse.

Discussion

12. The reason behind the law is because of the need to protect young girls from people like the defendant. The safety of our young vulnerable girls from predatory behaviours of older males needs to be vigilantly protected. For a country that places a lot of emphasis on family, culture and religion, the increase in the number of sexual violations and abuse against young girls in villages and especially within the home shows a breakdown in our society. Our society is structured around our cultural values and great emphasis placed on the importance of family. Our young children should feel safe when amongst family and within the home environment. It is with a heavy heart that such values are very much being threatened. The Court will never tire of imposing sterner sentences to send the message out that rape is a violent crime and society should never condone such behaviour but should do the best it can to stamp it out.
13. Sexual offending within the home environment against young girls at the hands of a family member breaching the sanctity of the home as a haven especially for the young children and the number of times a young child must endure, in this case three times. In these circumstances the offending is at the high end of the scale.
14. Victims of sexual offending have to live with the long-term emotional and psychological scars that remain, as well as the negative stigma attached to such a traumatic experience as was with the victim in this case.
15. It is without a doubt that a custodial sentence is most appropriate. The only question is how long.

Starting Point

16. The case of Key v Police^[3] provides the sentencing bands guideline for rape which are:
    • Band 1: 8 -10 years – Appropriate where the offending is at the lower end and where there is an absence of aggravating features or their presence is very limited.
    • Band 2: 9 – 15 years – Where violence and premeditation are moderate.
    • Band 3: 14 -20 years – Aggravating features at a relatively serious level.
    • Band 4: 19 – life imprisonment – As well as the aggravating features in Band 3 it is likely to consist of multiple offending over a considerable time. Repeat family offending would fall into this band.
17. I will adopt the totality approach of the offences committed and take the offence of rape with maximum penalty of life imprisonment as the most serious offence.
18. The Prosecution in their sentencing memorandum submits that this case falls at the high end of Band 3 in Key v Police [2013] WSCA 03 and refers to various sentencing decisions and suggests as appropriate the starting point of seventeen (17) years.
19. Counsel for the defendant distinguished the present case from those cases and submits that the circumstances of the present case fall at the lower end of Band 3 and recommend appropriate a starting point of 10 –12 years.
20. The golden rule is each case is sentenced according to its own circumstances.

Rape

21. The maximum penalty is life imprisonment. In the circumstances of this offending, taking into account the aggravating factors I take as appropriate the starting point of 15 years as in higher end of Band 2 and medium level of Band 3 of Key^[4] and make the following deductions - 18 months for being a first offender, 12 months for the ifoga and village penalty, 6 months for the written testimonials given on his behalf. This leaves 144 months. A 25% discount of 36 months for his guilty plea. The end sentence is 9 years.

Sexual conduct with a dependent family member under 21 years (x2)

22. The maximum penalty is 14 years’ imprisonment for each count. I find appropriate for each count 6 years’ imprisonment.

Conviction and sentence

23. The defendant is convicted and sentenced as follows:
    • (i) Rape – 9 years’ imprisonment;
    • (ii) Sexual conduct with a dependent family member under the age of 21 years (x2) – 6 years’ imprisonment for each count.
24. All sentences are to be served concurrently less any time in custody.
    

TUATAGALOA J

^[1] Crimes Act 2013, sections 49(1)(a) and 52(1)
^[2] ibid., section 56(1)
^[3] Key v Police [2013] WSCA 03
^[4] ibid