[the names of the complainants, their families, school and villages are suppressed]

supreme court of samoa
Police v Tuiletufuga [2013] WSSC 126

Case name: Police v Tuiletufuga
Citation: [2013] WSSC 126
Decision date: 26 September 2013  
Parties: police (prosecution) and Isei Tuiletufuga male of Vaiee Safata
Hearing date(s): 9 September 2013
File number(s): 
Jurisdiction: CRIMINAL
Place of delivery: MULINUU
Judge(s): justice slicer
On appeal from:
Order:
Representation: 
R Titi for prosecution
M V Peteru for defendant
Catchwords: 
Words and phrases:
Legislation cited:
Cases cited:
Police v Koneferenisi Tanielu [2006] WSSC 46
Police v Utuvai [2008] WSSC 50
Police v Mailata [2009] WSSC 74
Police v Autagavaia [2010] WSSC 16
Police v Seilala Sauileone (22 January 2013)
Police v Iosua Alailefua (19 September 2011)
Police v Paulo [2002] WSSC 1
Police v Oto [2009] WSSC 33
Postiglione v The Queen (1997) 189 CLR 295
Mill v R (1988) 166 CLR 59
Griffiths v R (1989) 167 CLR 372
R v Smith (1983) 32 SASR 219
Summary of decision:

in the supreme court of samoa
held at mulinuu
between
police
Prosecution
and
Isei Tuiletufuga male of Vaiee Safata 
Defendant

Counsel:	R Titi for prosecution
	M V Peteru for defendant
Hearing:	9 September 2013
Sentencing Hearing: 	23 September 2013
Sentence:	26 September 2013
Charges:	Carnal Knowledge (1x) and Indecent Assault (3x)

sentence OF slicer J
1.	Isei Tuiletufuga has pleaded guilty to one charge of unlawful sexual intercourse of a girl under the age of sixteen; two of attempted indecent assault on one girl under the age of sixteen, and one sixteen year and one of indecent assault on a girl aged seventeen.
2.	Five other charges comprised in Informations S1057, S1059, S1060, S1061 and S1062 of 2013 have been dismissed.
3.	The crimes were committed against four students who attended a school at which the offender was a teacher, and occurred between March and May 2013.  Each of the victims was under the care of the defendant as a teacher.  His conduct varied but included acts of holding, kissing, touching the breast by hugging, and caressing of the breasts.  In one instance involving ‘L’ he undressed the girl and had sexual intercourse with her.  In another, he required a fourteen year old girl ‘S’ to stay behind and after the other students had left, held the girl by force despite her physical resistance and only stopped when he heard the noise of someone opening a door.
4.	The prosecution suggests the following as appropriate commencing and actual sentences:
(a)	Carnal Knowledge		5 years, reduced to 4;
(b)	Indecent Assault			3 years, reduced to 2;
(c)	Attempted Indecent Assault	2 years reduced to 1; and
(d)	Attempted Indecent Assault	2 years reduced to 1.
5.	It seeks the imposition of an effective eight years sentence, each component to be cumulative.
Unlawful Carnal Knowledge
6.	The girl ‘L’ was age fifteen.  The Court accepts that the act of sexual intercourse was consensual and the girl had some emotional engagement with the defendant.  The law is designed not only to protect young girls from predation but also from their own immaturity.
7.	‘L’ had initially attempted to protect herself and probably the defendant from the allegation but others told the police or their parents of the girl’s admission.  Fortunately, she did not become pregnant; regrets her involvement and no longer wishes to see or speak with the defendant.  
8.	The Court accepts that the misconduct has harmed the reputation of the school and caused a drop in the number of enrolled pupils.
9.	The Court accepts that the conduct was a gross breach of trust and follows the approach taken by the learned Chief Justice in Koneferenisi Tanielu [2006] WSSC 46.  The case of Utuvai [2008] WSSC 50 relied on by the prosecution is of little assistance since it concerned the crime of rape by a teacher.  Considering cases such as Mailata [2009] WSSC 74, Autagavaia [2010] WSSC 16, Seilala Sauileone (22 January 2013) and Iosua Alailefua (19 September 2011), the Court will set the commencing point at four years imprisonment, reduced by one year for the entry of a plea of guilty.
10.	The effective sentence is that of three (3) years imprisonment.
Indecent Assault
11.	The indecent assault was committed on a seventeen year old girl ‘I’, and involved the holding of the girl’s hands behind her back and kissing her on the lips.  The offender desisted from his use of force when the girl struggled.  The girl was scared and suffered the taunts and scolding by her parents and fellow church members.  She feels shame for the conduct.  
12.	Applying for consistency, the approaches taken in Paulo [2002] WSSC 1 and Oto [2009] WSSC 33, and given the breach of trust and use of force, the commencing point will be two years imprisonment, reduced to one year cumulative because of the plea and mitigating matters.
Attempted Indecent Assault
13.	The girls ‘A’ and ‘S’ were aged sixteen and fourteen respectively.  Both have suffered from the conduct.  The Court will accept the prosecution’s contention of twelve months imprisonment but because of plea, mitigating matters and the principle of totality, the sentence of one year imprisonment will be served consecutively with the sentences already imposed.
Totality and Crushing
14.	The prosecution seeks cumulative terms of imprisonment determined by a commencing point of twelve years and an effective sentence, allowing for mitigating matters, of eight years.
15.	The defendant has been dismissed as a teacher and it is unlikely that he will ever be permitted to undertake any teaching role for the rest of his life.  He was aged twenty-six at the relevant time.  He is married with two children aged three and one years.  His wife is pregnant with a third child.
16.	The Court is required or at least permitted to have regard to the principle of totality where there is the danger of an excessive aggregate term of imprisonment which might destroy any possibility of rehabilitation.  Thomas in his work Principles of Sentencing (2 Ed), Hencemann 1979, 57 – 58 states the proposition as:
“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentence, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate.’” 
17.	Applying this principle, sentences which are proper and not excessive when considered alone, when considered in total have been held to be manifestly excessive.  As the High Court of Australia stated in Postiglione (1997) 189 CLR 295:
“a crushing sentence, not in keeping with the offender’s record and prospects, is to be avoided.”
18.	The principle has been applied by the New Zealand Courts, recognised as such by the High Court in Mill (1988) 166 CLR 59 and reflected in Griffiths (1989) 167 CLR 372 when Gaudron and McHugh JJ stated at 393:
“It is well established that in sentencing a person in respect of multiple offences regard must be had to the total effect of the sentence on the offender: Smith (1983) 32 SASR 219, at pp 220, 221, 222; Boyle and Allen, Sentencing Law and Practice, (1985), p 282; Hall, Sentencing in New Zealand, (1987), p 195.”
19.	Here the Court will impose an initial sentence on the unlawful carnal knowledge charge and make a cumulative sentence on the indecent assault charge.  The charges of attempted indecent assault will result in concurrent sentences.
Mitigation
20.	The defendant had graduated as a teacher.  These offences occurred in the second year of his employment.  He is married with two young children and his wife is pregnant with a third.  He is well regarded by his church and general community.
21.	He has shown genuine remorse and his family has performed ifoga to the fono with a payment of $5,000 and trade items.  He has apologised to the mother of one of the victims.  The terms of his banishment and bail conditions have prevented him from approaching the families of the other girls.  He has formally apologised to the school principal and the Ministry.
22.	The defendant is entitled to the benefit of his pleas of guilty.  In doing so he has spared four girls from the ordeal of giving evidence.
23.	Although a degree of force was used in three of the charges it was minimal and the defendant desisted when each girl struggled.  In at least two cases his conduct was opportunistic rather than planned.
24.	His wife has stood by him and his removal from the family unit will impact greatly.  Loss of his career will be of greater import than in many cases.
Conclusion
25.	The defendant will receive, subject to parole, an effective sentence of four (4) years imprisonment, less than that contended for by the prosecution.  His position as a teacher requires a greater penalty than those referred to by the defence such as Seilala Sauileone and Iosua Alailefua (supra).
ORDERS:
(1)	Isei Tuiletufuga is convicted of the crimes of unlawful sexual intercourse, indecent assault and attempted indecent assault.
(2)	Isei Tuiletufuga is sentenced to a term of imprisonment for a period of three (3) years for unlawful sexual intercourse comprised in Information S1058/13, such sentence to commence as and from 23 September 2013.
(3)	Isei Tuiletufuga is sentenced to a term of imprisonment for a period of one (1) year for indecent assault comprised in Information S1743/13, such sentence to be cumulative to that stated in Order (2).
(4)	Isei Tuiletufuga is sentenced to a term of imprisonment for a period of one (1) year for attempted indecent assault comprised in Information S1742/13, such sentence to be concurrent with Order (2).
(5)	Isei Tuiletufuga is sentenced to a term of imprisonment for a period of one (1) year for attempted indecent assault comprised in Information S1741/13, such sentence to be concurrent with Order (2).
(6)	The names of the complainants, their families, school and villages are suppressed.

…………………………
   (JUSTICE SLICER)