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Police v Halafihi [2025] WSSC 52 (8 July 2025)

IN THE SUPREME COURT OF SAMOA
Police v Halafihi [2025] WSSC 52 (8 July 2025)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

MIKAELE PAEA HA LOTU MATEO HALAFIHI male of Vailele, Tonga and New Zealand.

Defendant

Counsel: F. Ioane for Prosecution

1. Sua & L. Sio for the Defendant
   

Sentence: 8 July 2025

SENTENCE

Before passing sentence, I make an Order suppressing the publication of the victim’s name and her family. The Order does not extend to the defendant.

Charges

1. You appear for sentence on 3 charges - 2 counts of sexual connection with a young person under 16 years, each with a maximum penalty of 10 years imprisonment; and 1 count of indecent act on a young person under 16 years, the maximum penalty for which is 7 years imprisonment.
2. Originally there were 4 charges including 2 of sexual violation by rape which you denied. On 30 April 2025, prosecution withdrew those more serious charges and proceeded on the 3 to which you then entered guilty pleas.

Victim

3. The victim is now 16 years of age. She is a female from Tonga and New Zealand, and currently a year 12 student at ** High School in Auckland. She is the younger sister of your wife and lives in Auckland with her parents. At the time of offending, she was 15 years and 4 months old.

Offending

4. On 18 September 2024, the victim travelled from Auckland to visit her sister who is your wife and your family here in Samoa. She stayed with you, your wife and kids at ** village.
5. On 20 September 2024, you finished work around 11.30am and took home three bottles of liquor. Your wife started drinking around 2pm and you joined her later. Around 5pm your wife allowed her sister, the victim to join and drink with the 2 of you. Two of your cousins also joined the party around 8pm and your wife had to go to Sulā store to buy another bottle of Jim Beam. By this time the victim was already drunk and her sister had to take her inside the bedroom to sleep.
6. You continued drinking with your wife and 2 cousins until they left at around 12 midnight. You and your wife then cooked and ate before showering and going to bed.
7. Around 2am, the summary says that you came out of your room to use the bathroom, you saw the victim inside her room awake and talking on her phone. When you returned from the bathroom, the victim was standing in the kitchen area where you then started kissing.
8. You went to take another shower and when you came out, the victim went in to shower. She came out whilst you were drying yourself at the toilet area separated from the shower by a door. You then walked to your bedroom whilst the victim followed you. She pulled you inside her room where you laid on the bed before you proceeded to have sexual intercourse. You pulled out your penis and ejaculated inside her mouth.
9. You then got up to go to the room where your wife and children were sleeping. But the victim pulled you back and again you had sexual intercourse. She told you not to ejaculate inside her and not tell her sister and children. You responded “I’ve always wanted to fuck you” and told her you do not also want your wife to know.
10. After the second incident of sex, you left to take a shower for the third time and returned with your wife’s birth control pills and gave 3 to the victim which she took. You then returned to your room and laid next to your wife and children as if nothing happened.
11. The following morning, you all headed for a swim at the To Sua Trench and Piula Cave Pool with your wife and children, and the victim.
12. The incident came to light when the victim’s boyfriend who lives overseas later texted your wife and told her about what happened. Apparently, the victim had been on the phone talking to him before the incident. He was able to hear part of your sexual intercourse.
13. You denied the incident when first confronted by your wife, but later admitted to sleeping with the victim.
14. You also admitted the offending to Probation.

Aggravating Factors

15. The aggravating features of your offending are:
    • (i) Familial relationship – you are related to the victim by marriage. She is your wife’s younger sister. She was here to visit her sister and your family, and lived with you when the offences occurred. As such, the offending occurred as submitted by prosecution in the context of a domestic relationship;
    • (ii) Because of that relationship, there was some element of breach of trust as the victim was entrusted to you and your wife’s care during her stay here;
    • (iii) Age disparity – you were 26 and the victim 15 at the time of offending, an age disparity of 11 years;
    • (iv) Vulnerability of the victim given her age and fact that she was intoxicated;
    • (v) Place of offending being in the home you shared with your wife and children and where the victim expected to be safe and protected during her stay;
    • (vi) Impact on the victim - In the victim impact report, she expresses feeling unsafe in your presence and hated by your family for pressing charges against you. She lost focus at school especially close to the hearing. When discussing the VIR for purposes of your sentence, the victim says that she lost her self esteem and confidence, and felt like she was being blamed for what happened. The incident has also affected her relationship with her older sister, your wife, who had distanced herself from her when they all moved back to Auckland. I consider that given the close relationship with you and all affected, the psychological impact will remain with her for a long time.
      • As to reconciliation, she says an apology was rendered to her sister and parents and various attempts were made by your family for her to drop the charges. But not once have you or anyone apologised to her for what happened.

Mitigating Factors

16. I consider the following as a mitigating feature of the offending:
    • (i) the victim was actively involved and instigated the offending. She followed you as you headed to your bedroom, pulled you inside the room that she used where you ended up having sex. When you stood up to leave after the first offending, she pulled you back again and you ended up having sex a second time. After the incidents you both agreed to keep it a secret. But it did not take long for it to be revealed because the victim’s boyfriend heard on his phone what happened, and texted your wife and told her. I am conscious however that you were the adult, the victim a young person, and consent is no defence;
17. Personal to you as offender I consider:
    • (i) Your guilty pleas;
    • (ii) Reconciliation – the victim confirms reconciliation has taken place between the families though not directly involving her. Probation Service also confirms that whilst you were in custody following being charged, your parents flew from Tonga, met with your wife and family at where they were staying, apologised and sought forgiveness on your behalf;
    • (iii) Personal circumstances - you are 27 years of age, 26 at the time of offending. You are a native of Tonga who was living here with your wife and 2 young sons for your employment as a pilot for Talofa Airways. You are the second of 5 siblings. You grew up in a successful family who owned businesses in Auckland, New Zealand and Tonga. You attended Primary School in Tonga and High School in Auckland. Following high school, you studied aviation at Ardmore Flying School whilst also working as a baggage loader for Air New Zealand at the Auckland Domestic Airport. Following the completion of your studies, you received a commercial pilot licence in 2019 and began flying for Real Tonga Airline. With covid and its impact on air travel, you found work at the Port of Auckland and later with a construction company as a machine operator. In 2024 you commenced work as a pilot for Talofa Airways; you have been suspended as a result of these charges.
      • Your background shows you have not depended on your family’s business, but worked hard yourself through a number of jobs to support your young family, whilst also pursuing studies to become a qualified pilot. You have been the breadwinner for your family. Since these charges, you have separated from your wife and children who have moved back to New Zealand.
      • There is a significant number of testimonials provided through Probation from your close family members including your wife, siblings, uncles and aunts; members of your church community in Tonga and New Zealand including Monsignor Father Lutoviko Finau of the General of the Diocese of Tonga and Cathedral Administrator, and Carmelite sisters in Tonga; members of your Lepea Catholic church community including Parish Priest Father Mikaele Tuimavave and its chairman Salausa Dr John Ah Ching; and your colleagues from work including your employer Toleafoa Jeffrey Hunter, CEO of Talofa Airways.

I have read each of the 30 references provided. They speak of you as a sincerely polite, kind, dependable, committed and hard working young father who was brought up in a good family with a strong Catholic faith, and commitment to community service. They suggest that your conduct charged does not reflect your true character and the values you were brought up with and uphold. Their plea is that you be given a second chance.

• From these testimonials, I consider your offending to be out of character, and accept you are genuinely remorseful.

Discussion

18. The seriousness of the offence of sexual conduct with a young person is recognised by Parliament by providing a maximum penalty of 10 years imprisonment. As to the purpose of the offence, the Court of Appeal in Attorney General v Sefo [2018] WSSCA 16 recognised that it “ ... is two fold. One is society’s recognition that a young woman under 16 years of age requires protection from herself. That is why lability is strict and her consent is not a defence. The other purpose is to protect young women from predatory conduct by older male.”
19. In sentencing the court however has imposed varying penalties from custodial to community based depending on the facts of each case and circumstances of each accused.
20. Prosecution submits that sexual offending against young girls by male relatives by blood or marriage is becoming incurable and that in view of the aggravating factors, an imprisonment term with a start point from 3 to 5 years will appropriately reflect the seriousness of your offending.
21. Prosecution rely on Police v Lemi [2020] WSSC 67; Police v P.A [2025] WSSC 22; Police v Logoitino Faaiuga (Unreported, 6 November 2024); Police v Olo [2017] WSSC 10; Police v A.T [2021] WSSC 6. In all those cases, sentences of imprisonment were imposed. I have considered the circumstances of each case including the number of charges, relationship between the accused and victim, age disparity and circumstances of offending. And in none did the victim play an active part in causing the offending to happen.
22. Your counsel on the other hand submit that the facts in particular leading up to the offending justify a non custodial sentence, but in the event the court considers appropriate a term of imprisonment, then 12 months is an appropriate starting point.
23. Counsel rely on Police v Fatu [2016] WSSC 125 and Police v Fiso Isaia (Unreported, 23 July 2016) where non custodial sentences were imposed; and Police v Lasalo [2016] WSSC 105; Police v Ray Taituave (Unreported 25 July 2016); Police v Wilson [2017] WSSC 71; Police v Ioane Solomona (Unreported 8 December 2017); Police v. Tito Hunt (Unreported, 22 August 2018); and Police v Koroseta Taumaoe (Unreported, 10 October 2018) where the court imposed terms of imprisonment with starting points between 8 months and 2 years.
24. Apart from the authorities cited by both counsel, I have also considered Police v Taulapapa [2014] WSSC 66; Police v Lautusi [2015] WSSC 271; Police v Petelo [2016] WSSC 44 where non custodial sentences of supervision were imposed.
25. In Police v Taulapapa [2014] WSSC 66 (11/11/14), a 30 year old defendant was sentenced to 12 months supervision and 200 hours community service on 5 counts of sexual connection with a young 14 year old victim. In that case, after 10 weeks of a boyfriend / girlfriend relationship, the victim convinced the defendant to take her with him to his family where they lived and the offences were committed on 5 separate occasions.
26. In sentencing, the late Sapolu, CJ noted at paragraph 15 as a mitigating feature of the offending that “... the victim had an important and active part to play in causing the offending to happen. She was also a willing, consenting and active party to the acts of sexual intercourse that took place, as shown from the summary of facts.” But the Court was also “... conscious that the purpose of a provision like section 59 Crimes Act 2013 is not only to protect young girls from being taken sexual advantage by males but also to protect young girls from themselves because of their inexperience and lack of maturity.”
27. Coming back to your case, I bear the same in mind and have given careful consideration to all circumstances particularly the aggravating and mitigating features. Despite the victim’s conduct leading up to the offence, you were the adult, you knew your relationship with her, you should have known better.
28. This was a party that went too far. With the amount of alcohol and time the drinking continued, it certainly had an impact on the conduct of the young victim, and possibly led to you making a very bad choice.
29. The impact on the victim in the long term given the close relationship is always an important consideration. With the same emphasis I consider that what you did was out of character. You have a young family who have all been affected by what happened and are separated from. At your age, you have worked hard to provide for your family including migrating here to work for a local airline.
30. Of the 30 testimonials in support of your character, I want to refer to 2 which in some way reflect the court’s purpose in passing sentence this afternoon. That whilst acknowledging the seriousness of your conduct and need for the protection of the interests of the victim, it must also promote in you a sense of responsibility for the harm caused, deter you from similar offending and assist in your rehabilitation.
31. The first is by your employer Toleafoa Jeffrey Hunter of Talofa Airways. He says at para 3:
    • “I am aware of the charges Mikaele is facing. He has expressed genuine remorse for his actions and shown a deep understanding of the consequences they carry. In my opinion, this has been a significant learning experience for him, and I believe this incident has made Mikaele who has just started a promising aviation career more aware of the aviation environment’s harmful attractions and consequences if not handled correctly, and I know he will use this experience to ensure it won’t happen again.”
32. The second is by Monsignor Fr. Lutoviko Finau, Vicar General of the Diocese of Tonga & Cathedral Administrator. He says at para 3:
    • “Mr Halafihi’s family has informed me that he is running into trouble with the law. My deepest sympathy goes out to the victim and her family. I hope that you will be kind enough to grant him the opportunity or a second chance. I am fully aware of the importance of your judicial system and its role in society. In this case, a law has been broken and justice must be done. But I pray that Mr Halafihi will be given that second chance our Lord Jesus Christ taught us we are worthy regardless of how great a sin is, a chance for Mr Halafihi.
33. For all the reasons I have referred to, I have decided to give you another chance and impose a non custodial sentence. I consider that you have voluntarily served the community through the Catholic Parish at Lepea for over 7 months now.

Result

34. On all 3 charges, you are convicted and fined $5,000 to be paid by 2pm next Friday 18 July 2025. In default, you will serve 6 months’ imprisonment.

JUSTICE ROMA