Police v Ah Kuoi [2016] WSDC 21 (11 May 2016)

DISTRICT COURT OF SAMOA
Police v Ah Kuoi [2016] WSDC 21

Case name:	Police v Ah Kuoi
Citation:	[2016] WSDC 21
Decision:	16 May 2016
Parties:	POLICE v LEU LEAPAGA AH KUOI, male of Leauvaa uta.
Hearing date(s):
File number(s):	D1094/16, D1095/16.
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	DISTRICT COURT JUDGE CLARKE
On appeal from:
Order:	- Convicted and sentenced to a term of imprisonment of 9 months for the charge of indecent assault. - Convicted and discharged in respect of the charge of insulting words.
	F. Ioane for National Prosecutions Office
Representation:	M. Peteru for defendant
Catchwords:	Indecent Assault – Insulting Words – aggravating features – mitigating features - sentence
Words and phrases:
Legislation cited:	Crimes Act 2013 s.60 – Police Offence Ordinance 1961 s.4 (g).
Cases cited:	Police v Nielsen [2014] WSSC 22 (10 June 2014)]. Police v Leiataua [2015] WSSC 211 (17 December 2015) – Police v Iloa [2016] WSSC 40 (31 March 2016
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

LEU LEAPAGA AH KUOI, male of Leauvaa uta.
Defendant

Counsel:

F Ioane for National Prosecutions Office

M. Peteru for defendant Sentence:27 April 2016

Decision: 16 May 2016

SENTENCING DECISION OF JUDGE CLARKE

1. Leu Leapaga Ah Kuoi, you appear for sentencing on one count of indecent assault at Leuavaa on 16^th July 2015 in breach of section 60 of the Crimes Act 2013. The offence carries a maximum penalty of 5 years imprisonment. You also appear for sentencing for uttering insulting words in breach of 4(g) of the Police Offences Ordinance 1960 which carries a penalty of 3 months imprisonment or a fine of up to $200.00.
2. You entered a guilty plea to the charges on the 25^th February 2016 on the dismissal of Information S2322 and S2360 before the Supreme Court.

The Offending

3. According to the Prosecution Summary of Facts accepted by you through your counsel, you are well acquainted with the victim. She attends the same church as you and your homes are located not far apart. On 15 July 2015 at approximately 6.30am, you stopped your vehicle and picked up the victim who was walking to her work at Aleisa. You offered her a ride and took her to work. On the 16^th of July 2015 at approximately 6.30am, you again drove and stopped and offered the victim a ride to her workplace. As you drove on this occasion, you said to her “ea, ka ke o e fai se ka mea ae aua gei e alu e faigaluega.” The victim became agitated and when your car reached an isolated location on the road with no houses or people, you stopped your car. You waited for a car in front to continue on and then told the victim to look at something on the road. As she turned her head, you grabbed the victim’s breast touching her whole upper body and neck. She resisted but you pulled the victims hair and face towards you and kissed her mouth. She gritted her teeth and moved under your weight to resist you. Because of resistance, you punched the victim in the stomach and swore at her saying “se ufa ia oe, aikae.”
4. The victim cried as a result of your assault and told you she would tell her father. You then told her “aua gei e pisa pe e ke kaua I se isi, o le taimi e ke tautala ai I lau mea sa fai, e ke makamaka iai I lau mea e fai ia oe.” You then asked her if she would go have sex with you and for her not to go to work. She refused. You offered her $5 for food which she also refused. You dropped her off to work and told her you would come by later to give her money for what you had done.
5. In your Pre-Sentence Report, you claimed that you “suddenly had an overwhelming arousal towards her (the victim) as [you both] were alone in the car.”

The Accused

6. I have referred to your Pre-Sentence Report. You are a 72 year old married man residing with your mother’s family at Leauvaa. You have 4 children aged between 34 and 48 years of age and are also a grandfather. You hold the matai title Leapaga from Leauvaa and earn money as a planter and receive remittances from 2 of your children overseas. You had an operation 10 years ago. You claim that the leg injury continues to affect you including your balance. You are described by your wife as a loving husband and caring father to your children and grand children. You are also described as hardworking and contribute to the work of your church including being the chairperson of your village parish.

The Victim

7. The victim is a 17 year old female of Leauvaa.

Aggravating features of your offending

8. In respect of your offending, there are a number of aggravating features. These are:
   • (i) your age difference with the victim of approximately 55 years.
   • (ii) the victim’s young age and vulnerability;
   • (iii) your breach of trust. You are chairperson of your village parish attended by the victim and you are also a matai of the village of Leauvaa, the same village of the victim and you are also her neighbor. Your breach of trust was at a number of levels;
   • (iv) Your indecent assault was accompanied by a verbal threats to the victim as well as you punching her stomach; and
   • (v) An element of premeditation. You had picked the victim up the day before in the same circumstances and on the date of your offending, you then committed the indecent assault.

The mitigating features of your offending

9. There are no mitigating features in respect of your offending.

Aggravating features as an offender

10. You are a first offender and there are no aggravating features personal to you as an offender.

Mitigating Features of offender

11. I take into account your early guilty plea, your previous good character, apology to the victim and her family which was accepted.

Discussion

12. The Samoan Courts have long recognized the prevalence of sexual offending in our community and have very clearly enunciated the need for deterrence in sentencing. His Honour Vaai J stated in Police v Leiataua [2015] WSSC 211 (17 December 2015) for example in a matter involving sexual connection with a 14 year old stated, a different charge to your matter:
    • “The prevalence of sexual offending on yourls irls justifies stern measures to convey society’s denunciation to deter men, old and young, in the commission of similfences, and to protect immature young girls.”
13. The sentences imposed by the Courts for indecent assault vary between non-custodial and custodial sentences. In Police v Iloa [2016] WSSC 40 (31 March 2016) for instance, a non-custodial sentence was imposed involving community work and supervision where there were 2 victims. This offending was however is at the lower end of the scale of this type of offending and where there were no threats and other assaults included as part of the offending. Many cases of indecent assault result in an imprisonment term and in your case, an imprisonment terms is warranted and will be imposed.
14. You told probation that your leg injury has had a permanent effect on you. Your medical report attached to the Pre-Sentence Report however states you are in “good health” but that you get “pains at times if [you are] not careful walking.” Your leg condition is not such as to warrant this as a mitigating factor in sentencing [see Police v Nielsen [2014] WSSC 22 (10 June 2014)].
15. Prosecution has asked for a starting point of 2 years imprisonment. In my respectful view, that starting point is too high in the circumstances of your offending and taking into account the aggravating and mitigating factors of the offending and personal to you as an offender. I will adopt 18 months starting point. I will deduct for your previous good character, remorse and apology 4 months. I will deduct 5 months for your early guilty plea on the withdrawal of the other charges. This leaves a balance of 9 months imprisonment for the charge of indecent assault. For the charge of insulting words, you are convicted and discharged.

The penalty

16. You are convicted and sentenced to a term of imprisonment of 9 months for the charge of indecent assault. You are convicted and discharged in respect of the charge of insulting words.
    

JUDGE LEIATAUALESA D. M. CLARKE