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Police v Pualilo [2014] WSSC 145 (23 June 2014)

IN THE SUPREME COURT OF SAMOA
Police v Pualilo [2014] WSSC

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

TAUTUA PUALILO, male of Vailuutai.
Defendant

Counsel: O Tagaloa for prosecution
F K Ainuu for defendant

Sentence: 23 June 2014

SENTENCE

1. The defendant originally faced two charges. The first is that in the month of September 2013 he did threaten to disclose a film or video about the complainant with intent to cause the complainant to act in accordance with his will. That is the offence known as blackmail. The second offence he faced was a new one created by the Crimes Act 2013 the offence of voyeurism.
2. On the 16^th of April 2014 the District Court sentenced the defendant o 12 months in prison on the charge of voyeurism. That left the charge of blackmail to be dealt with by this court because its 7 year maximum penalty meant this court had sole jurisdiction. The defendant pleaded guilty to both charges.
3. Blackmail is defined by section 181(1) of the Crimes Act 2013 in the following terms: that a person commits blackmail who threatens expressly or by implication to disclose something about another person intending to cause that other person to act in accordance with the will of the person making the threat.
4. The police summary of facts says the defendant is 27 year old male of Vailuutai and at the time of the offending was unemployed and single. The complainant is a female of another village age 27 years single. At the time was resident in Samoa. The defendant and the complainant met in June 2013 and began dating. This involved having consensual sexual intercourse at various locations including one at a hotel in the month of July 2013.
5. During that sexual liaison the complainant performed oral sex on the defendant. Unknown to her the defendant was filming what she was doing on his cell phone. She did not realize this until the act was complete. In her police statement she says:

“O le telefoni sa u’u e Tautua ma e u’u fa’aautafa i luga o lana fatafata. Ma lo’u leiloa o lo’o pu’e e Tautua lo’u gaioiga lea e fai. Ina ua uma le pese sa ta, ua emo foi le moli flash light na ou iloa ai o la sa pue (record) e Tautua la’u gaioiga sa fai e aunoa ma so’u iloa. Ou te le’i malie foi e pu’e lo’u ata ma ou te leiloa i le taimi lea na pu’e ai. Na ou fai ia Tautua e fa’apea stop it, please stop it ina ua ou iloa o lo’o record e Tautua la’u gaioiga sa fai. Na ou toe fesili foi iai po’o le a le mea ua ia pu’eina ai a’u, ae tali mai e aua ou te popole o le video lea sa pu’e e mo ia lava ae le fa’amatamataina ai seisi tagata.”

6. It is clear from her statement the defendant indicated to her the recording was for his own personal use. It is also clear he made the recording without her knowledge or consent. Her statement goes on to say that she asked him to delete it. But she was assured no one else would see it and that it was for his eyes only.
7. According to the summary on another date in the same month of July she again raised the issue of the recording with the defendant on the phone. She asked the defendant about it and he promised her that he had already deleted it and that no one had seen the recording.
8. The relationship between the defendant and complainant continued in 2013. On a date in the month of September they planned to go out. The complainant was going to fund their night out. But their plans changed and the date did not eventuate. So the defendant asked the complainant if he could have the money that was to be used for the outing. The complainant refused. This angered the defendant.
9. A few days later still in September the defendant asked the complainant to give him $130. Threatening that if she did not give it to him he would send the recording to his cousin who worked for a video store. The complainant again refused to give the defendant money. The defendant circulated the recording. The complainant only found out about this when people in the village began laughing and pointing fingers at her and sniggering behind her back. The complainant laid a police complaint leading to the defendants appearance before the court today.
10. From those facts it is not clear at the time the defendant made this recording what exactly his intent was in making the recording. But what the facts show is when he began asking the complainant for money he used the recording to blackmail her. When she refused to pay he followed up on his blackmail threat and made the recording public.
11. In a small jurisdiction like Samoa where almost everyone has a cell phone the effect of this sort of behaviour on a young girls reputation would be quite significant and devastating. Conduct of this nature therefore requires a strong deterrent penalty from the court. There is no question in my mind the applicable deterrent in the circumstances should be a sentence of imprisonment.
12. There have been no previous cases in Samoa of this nature because this crime is new to our jurisdiction. But the New Zealand decision in Police v Hume [2012] NZHC 1766 is applicable to this sort of case. That was also a case involving a charge of blackmail and involved a threat to circulate indecent materials. There the court say in a case involving blackmail the purpose of deterrence is to “put you off from doing anything ever like this again and sending a message to other likeminded people.” The sentence should also denounce and express “society’s complete rejection of this sort of conduct.” The learned judge added “Blackmail is often described as a vicious offence because it preys on peoples vulnerabilities.” The court also referred to the sort of factors that are relevant to sentencing namely, the relationship between the blackmailer and the victim; the threat underlying the demand; whether money was demanded; how persistently the demand was made; whether the demand is successful; vulnerability of the victim to the demand and the effect on the victim.
13. In this case the two parties defendant and victim were in a relationship. A relationship that was of a sexual nature. The victim was entitled to trust the defendant. And that he would not betray her. As for the threat itself it is a serious threat because it was a threat to significantly damage the victims reputation. The threat was made on more than one occasion. And was to extort money. When the victim refused the defendant had no hesitation in carrying out his threat by making the recording public. With the resultant public humiliation of the victim.
14. As indicated the maximum penalty for this offending is 7 years in prison. Considering the circumstances an appropriate start point is around 4 to 5 years. As a gesture of leniency I will take the lower limit of 4 years. From that you are entitled to certain deductions which your counsel has referred to in his submissions. Firstly for your guilty plea. I will deduct 12 months for that representing one-quarter of your sentence. Leaves a balance of 36 months. For the fact that you have a good background as outlined in the pre-sentence report and the fact that you have a clean criminal record I will deduct 6 months. Leaving a balance of 30 months. There is reference in the documents before the court about a penalty that was imposed by the village council. For that I will deduct a further 6 months. Leaves 24 months. There is also confirmation of an ifoga that was carried out. That is culturally correct and in all circumstances is appropriate. I will deduct a further 6 months to reflect that. Leaves a balance of 18 months.
15. You are convicted and sentenced to 18 months in prison. That term is to run concurrent with your 12 months in respect of the voyeurism charge.
    

JUSTICE NELSON