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Police v Lisa [2015] WSSC 133 (28 January 2015)

IN THE SUPREME COURT OF SAMOA
Police v Lisa [2015] WSSC 133

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE
Prosecution

AND:

TASISELE LISA, male of Salelavalu.
Defendant

Counsel: L Tavita for prosecution
J Annandale on behalf of R Schuster for defendant

Sentence: 28 January 2015

SENTENCE

1. Tasisele ia o lea ua e faalogo i le talosaga a lou tina. A tu’u atu oe e te toe foi i Savaii e te nofo i lou tina, ua e malie iai i tulaga ia? (defendant said yes). Ma e te nofo i Savaii ma lou tina e aua le toe fealualuai oe pei o le mea lea na tupu i le mataupu lea? (Defendant said yes). E te toe faia se mea faapea? (Defendant said no). O le na e te malamalama i le leaga o lau mea lea na fai e sa’o? (Defendant said yes). E laititi tele le teineitiiti lea na e tagolima iai. Ua maua sou aoaiga i le mataupu lenei? Ua maua se lesona? (Defendant said yes). O le a le lesona? (Defendant said he is remorseful of what he did and does not want to go back to Tafaigata).
2. In this case the defendant has pleaded guilty to a number of charges arising out of his sexual assault of a young girl. There is no doubting the seriousness of the charges and this matter because of the very young age of the victim. The police summary of facts says that when this incident happened the defendant was living at the victims family. He had not been there very long. It appears from what I can determine that the defendant left his home in Salelavalu Savaii. Where he was under the care of his grandmother. His mother told the court this morning that at that time she had moved to live at her husbands village leaving the defendant in the care of the grandmother. That may explain why the defendant decided to leave the family and go and live with another family at Tiavea in Upolu. The defendants mother also told the court this morning that she has now returned to Salelavalu and is willing and able to look after her son. Indeed she has petitioned the court for leniency and for return of the son to her care.
3. In the normal course of events a defendant who has committed a serious sexual assault on a young child would be sent by the court to prison. The defendant already has had a taste of prison because he has been remanded in police custody since this matter originated. He has spent in fact about 8 months in police custody. He should be under no illusion as to the harshness of prison life.
4. What makes his case different from a normal defendant who appears on a serious sexual assault charge is the mental health assessment that was carried out upon him by Doctor Parkin of the Samoa National Health Services, a duly qualified and the resident Consultant Psychiatrist at the Tupua Tamasese Hospital. His conclusions were that the defendant understands what is going on but has a mild to moderate degree of intellectual impairment, resulting in his having the decision making ability of only a 12 to 14 year old rather than an adult which in physical terms he is. I think the mother recognizes this because she acknowledged this morning to the court that her son “e faaletonu le mafaufau.”
5. Significantly Doctor Parkin also expressed the view that because of this intellectual impairment the defendant could be victimized in a prison environment. I am in complete agreement with that. He also states in his report the defendant gave the impression of being truly sorry for what he did to the little girl. The defendant has this morning personally expressed remorse as he did also through his counsel. This is not your normal defendant. And I do not believe that the ends of justice would be best served by sending him to prison for what he did.
6. I note the prosecution have argued to the contrary but I am of the view that imprisonment is not appropriate. Instead the defendant will be placed on a term of supervision under the probation office. Supervision to be for the maximum term allowable by law which is 3 years. Special conditions of his supervision are firstly that he resides with his mother at Salelavalu in Savaii. And that he is not to change his residential address without the prior permission of the probation office.
7. Secondly he is to report for the first 6 months of his period of supervision at least three times a week to the probation office. The office will advise him which three days of the week he will be required to report. At those reporting he is to be accompanied by his mother.
8. Thirdly that if there is any change in circumstances of the environment where the defendant resides the matter should be immediately brought to the attention of the probation office. By this I mean Mr probation officer in case something happens to the mother who is going to be responsible for him for his period of supervision. The defendant will also be required to attend the rehabilitation programs of the office as and when directed by the office.
9. Furthermore he is not to associate with those people that the probation office tell him not to associate with. The defendant will also be subject to a night time curfew during the hours of 6:00 pm and 6:00 am when he is to remain within his residence. He is not to be found outside his place of residence unless accompanied by the mother on some suitable errand.
10. The other conditions of probation will be explained to the defendant by the probation officer at the completion of these proceedings. I emphasis to the mother of the defendant who is present in court that the defendant is being released by the court into her care and we will look to her to be responsible for her sons behaviour.
11. For the purposes of the court record I note that the sentence of supervision takes into account the fact that the defendant has already spent some 8 months in police custody. But I warn you Tasisele that any future misbehavior by you will result in your being returned to prison. Ua e malamalama i le faaiuga Tasisele? (Defendant said yes).
12. Tulai mai Moemoe, ia masalo o lena ua e faafofoga i le faaiuga a le faamasinoga. O lea o le a avatu le faatuatuaga a le faamasinoga ia oe le tina e vaai faalelei le tama ma tausi lou alo. E 3 tausaga lea o le a faanofo vaavaaia ai le tama i lalo o le vaavaaiga a oe ma le ofisa faanofo vaavaaia. O tuutuuga faapitoa a le faaiuga, muamua e tatau ona nofo Tasele i lona tina i Salelavalu i Savaii, e sa ona e nofo i seisi mea vagana ua ioe iai le ofisa. Ua e malamalama? (Defendant said yes).
13. Lona lua e tatau ona e saini i le ofisa faanofo vaavaaia i Savaii faatolu i le vaiaso. E tau atu lava a le ofisa poo le a le aso e tatau ona lipoti ai le tama e saini. E tatau ona lua o faatasi tina i le taimi lea e saini ai le tama i le ofisa faanofo vaavaaia. O leisi tulaga e iai polokalama a le ofisa Moemoe ou te iloa e aoga mo Tasisele. A faatonu oe Tasisele e te alu e auai i polokalame usitai iai ma alu e auai iai e maua ai mea lelei mo oe. E le’o mea lelei mo matou o mea lelei mo oe. Ua e malamalama? (Defendant said yes).
14. A fai atu foi le ofisa e aua e te talanoa ma lea tagata, aua e te tafao ma lea tagata usitai iai, o mea foi na e taumafai iai le ofisa ma lou tina e mo le lelei o lou olaga. Ua e iloa Tasisele. (Defendant said yes). E fai foi la sa, i le va o le 6:00 i le afiafi ma le 6:00 i le taeao e sa ona e alu ese ma le tou fale. Vagana ua lua o ma lou tina i se feau talafeagai. Ae a leai e tatau ona e nofo i le tou fale, malolo lelei, faitau le Tusi Paia, matamata le TV. Ua e malamalama? (Defendant said yes).
15. O le faamatalaga mulimuli a le faamasinoga Tasisele, o le avanoa lea ua tuu atu ia oe o le avanoa e le masani ona maua e tagata. Ua ala ona tuu atu ona e fai sina faigata o le tulaga lea e iai lau susuga ma le malosiaga o lou mafaufau. O lea e taumafai le ofisa ma lou tina e fesoasoani atu ia oe mo lou lumanai. Ae a e le usitai, pe tasi a se mea e te le usitai ai i le ofisa, e toe aumai oe e le ofisa i luma o aú. A ta toe fetaui, ia na ua e iloa le mea e oo iai. Ou te avea oe i le falepuipui. Ua e malamalama lelei? (Defendant said yes).
16. Aua e te toe faia se mea faapea ma aua foi e te toe faia seisi ituaiga solitulafono ao lea e te i lalo o le vaavaaiga a le ofisa aua e 3 tausaga lea e te nofo vaavaaia ai. A uma foi le vaavaaiga a le ofisa, e le tatau lava ona e aafia i seisi solitulafono poo nisi mea faapenei. Ua e malamalama Tasisele? (Defendant said yes). O isi tuutuuga Moemoe o le faanofo vaavaaia le alii ofisa lea tou te feiloai ma faamalamalama atu ia oulua. E iai se fesili e uiga i le faaiuga faasaga i lou alo? (Moemoe: indicated she understood). Tasisele ua manino? (Defendant said yes). Tama lelei ma aua nei e toe sau i luma o le faamasinoga, aua a e toe sau i luma o le faamasionga o lena ua e iloa le mea e oo iai.
    

JUSTICE NELSON