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Police v Liliko [2014] WSSC 162 (5 August 2014)

IN THE SUPREME COURT OF SAMOA
Police v Liliko [2014] WSSC 162

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

VASA SIAOSI LILIKO, male of Saamatau and Moamoa Faleasiu.
Defendant

Counsel: O Tagaloa for prosecution
F K Ainuu for defendant

Sentence: 05 August 2014

SENTENCE

1. The defendant appears for sentence on two charges: the first S2240/13 alleging that at Faleasiu during the month of June 2013 he had sexual connection with the complainant, a dependent family member under the age of 21 years; the second charge is S2239/13 alleging that on 26 September 2013 at Vaitele-uta, he did the same thing to the same girl.
2. It is common ground that at the time these offences occurred the complainant was 20 years of age and the acts of sexual connection were consensual. The facts of this matter in so far as they are relevant were dealt with in the change of plea application of the defendant and I do not propose to repeat them. See judgment dated 01 August 2014
3. The maximum penalty for the offending is 14 years imprisonment by law. What the defendant did as a mature and experienced man 35 years older than the complainant was quite inappropriate especially since at the time he was living with the complainants family at Faleasiu. He was as such an older and respected member of the family group. He had been accepted into the family group at his request so that he could better service his “fofo” (massage) clients by living with the complainants family in the “a’ai” of the village. He played a significant role in the family and the younger members looked up to him. The question then is whether he should do prison time for in those circumstances having a sexual connection with the 20 year old complainant.
4. As stated it is clear that the acts of sexual connection were consensual. The complainant in question appears to be a mature, working, single, female member of the family. She seemed from her testimony to be quite balanced and perfectly capable of running her own life including picking those people she chooses to have a relationship with. It also appeared from the evidence she was receiving some financial assistance from the defendant for her “pasese” to and from work in Apia. Also to help pay off her loan and quite likely for other things she wanted as well.
5. The victim impact report filed by the prosecution shows that the complainant is none the worse for her experience with the defendant. I formed the impression the complainant engaged in these acts with the defendant with her eyes wide open. I find no suggestion there was a betrayal of trust but his relationship with her was in the circumstances not appropriate. To some extent he took advantage of his position as a senior and older family member. It is also clear from the complainants statement that in respect of the first instance of sexual connection she went voluntarily to the bed of the defendant; that in relation to the second instance she went to the defendants family at Vaitele.
6. This seems to be a case of sexual activity between two consenting adults who were both well aware of what they were doing. But that does not absolve the defendants using of his position in the family which is what the statutory provision seeks to protect young members of the family from.
7. Taking careful consideration of all the circumstances of the offending, even though the police are seeking an imprisonment penalty be imposed on you Vasa, I am of the view imprisonment is not an appropriate punishment. But that is not to undermine the seriousness of your offending and the penalty must reflect that seriousness.
8. In respect of charge S2240/13 relating to the sexual connection that occurred at Faleasiu, the defendant will be convicted and fined $500.00.
9. In respect of the second charge against you S2239/13 alleging the sexual connection at Vaitele-uta although I initially had some concerns about the applicability of this charge I have come to the conclusion that in the absence of any clear evidence that the defendants absence from the family was on this occasion not a permanent move. I will accept that the reason for his presence at Vaitele-uta was as a temporary trip to visit relatives or to conduct other business and at that time you were still part of the complainants family group. In respect of that charge therefore you will likewise be convicted and fined $500.00.
10. That is a total fine for the two charges of $1,000.00. You have 7 days in which to find the money Vasa to pay that fine. In default of payment you will serve a term of imprisonment of 6 months; that is 3 months in respect of each charge. Ua e malamalama i le faaiuga o lau mataupu, a Vasa? (Defendant said yes).
    

JUSTICE NELSON