Police v Sa [2016] WSDC 31 (22 July 2016)

DISTRICT COURT OF SAMOA
Police v Sa [2016] WSDC 31

Case name:	Police v Sa
Citation:	[2016] WSDC 31
Decision:	22 July 2016
Parties:	POLICE v SA, male of Vaimea, Saipipi Savaii and Tafaigata Prison.
Hearing date(s):
File number(s):	D334/16.
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	DISTRICT COURT JUDGE CLARKE
On appeal from:
Order:	Accordingly, you are convicted and sentenced to four months imprisonment cumulative to your current term of imprisonment that ends this month. On your release, you are to serve a 6 month sentence of supervision with the following special conditions that you: (a) complete a 10 week alcohol program as directed by the Probation Service; and (b) attend any other rehabilitation programs as directed by the Probation Service during the supervision period.
	Ms I Atoa for National Prosecutions Office
Representation:	Defendant in person
Catchwords:	Indecent Act
Words and phrases:
Legislation cited:	Crimes Act 2013 s.77
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

SAMUELU SA, male of Vaimea, Saipipi Savaii and Tafaigata Prison.
Defendant

Counsel:

Ms I Atoa for National Prosecutions Office

Defendant in person

Decision: 22 July 2016

RESERVED SENTENCING DECISION OF JUDGE CLARKE

1. Samuelu Sa, you appear for sentencing on one count of indecent act with intent to insult or offend in breach of section 77 of the Crimes Act 2013. The offence carries a maximum penalty of two (2) years imprisonment.

The Offending

2. Your offending is set out in detail in my written judgment dated 4 July 2016 delivered on the same date. I will not re-state the facts of your offending for the purposes of your sentencing.

The Accused

3. You are a 39 year old male of Vaitele-fou and Falealupo. The Probation Service Report states that you are the eldest of 7 children. You were born and raised at Siusega with your paternal family. You were employed in various casual jobs including on fishing alias and more recently, as a brick layer. At the time of your offending, you were in prison for drug related offending for which you were sentenced in 2015.
4. It is apparent from what you told the Probation Service that your family relationships have broken down.

The Victims

5. The 2 victims of your offending are a boy aged 11 years of age and a girl aged 9 years of age. They reside at Faleula and are attending primary school.

Aggravating features of Offending

6. The aggravating features of your offending are as follows:
   • (I) Your offending involved two victims;
   • (II) The vulnerability of the victims. The victims are children; and
   • (III) Your gross intoxication at the time of your offending. In your own evidence, you had been consuming alcohol for almost 24 hours.

The mitigating features of your offending

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

The aggravating factor relating to you as an Offender:

8. You have prior convictions for drug related offending from 2015 and for which you were serving a custodial sentence when you committed your offending. You also committed your offending when you were released from Prison on the ‘weekend release’ program.

The mitigating factors relating to you as an Offender:

9. There are no mitigating factors personal to you as an offender. Whilst you said you were remorseful, I do not accept that as genuine remorse. In your Pre-Sentence Report, you have continued to dispute your finding of guilt.

Discussion

10. The Prosecution has asked for a term of imprisonment of six months.
11. Your offending was committed by you whilst you were a prisoner at Tafaigata Prison. You were given the privilege of ‘weekend release’, the purpose of which is apparently for your rehabilitation and to prepare you for your return to the community. Instead of using the ‘weekend release’ program towards your rehabilitation and in preparation for your re-integration into the community on your release, you instead used the opportunity to consume a large volume of alcohol over an almost 24 hour period, became grossly intoxicated and then performed an indecent act for two young children to see. Both victims stated in their Victim Impact Reports that they are unhappy with your offending and no doubt, your offending will have impacted on them.
12. Offending by prisoners on weekend release, as escapees or any other form of release is prevalent and is a source of significant public concern. As I have said in an earlier matter for offending on weekend release, it also brings any temporary or pre-release programs offered by the Prisons and Corrections Service into disrepute and undermines the public’s confidence in the Prison and Corrections Service, its rehabilitation programs and ultimately, the justice system.
13. You told the Court that you do not want to continue to be imprisoned and you wish to return to your family. The only guarantee for you to return to your family and to stay with your family is for you to become a law abiding citizen. That you offended when you were a prisoner on ‘weekend release’ says that you have learnt very little from your time in prison. A balanced sentence that incorporates both deterrence to other likeminded people and your rehabilitation is therefore necessary. Prisoners must understand that if they offend whilst a prisoner extended the privilege of a release program into the community, they run the real risk of a further custodial sentence being imposed. These programs must be used by prisoners for their intended purposes, namely their rehabilitation and re-integration into the community and not simply as a weekend holiday out of prison.
14. Given the aggravating and mitigating factors of your offending, a custodial sentence is warranted. I adopt a 3 month starting point. I will uplift the sentence by 1 month for the aggravating features personal to you as an offender. On your release from prison, you are to be under a 6 month sentence of supervision with special conditions to target your rehabilitation so that you can hopefully become a useful member of our society and not re-offend in future.

The penalty

15. Accordingly, you are convicted and sentenced to four months imprisonment cumulative to your current term of imprisonment that ends this month. On your release, you are to serve a 6 month sentence of supervision with the following special conditions that you:
    • (a) complete a 10 week alcohol program as directed by the Probation Service; and
    • (b) attend any other rehabilitation programs as directed by the Probation Service during the supervision period.

JUDGE LEIATAUALESA D. M. CLARKE