Police v Samaila [2021] WSDC 1 (10 August 2021)

IN THE DISTRICT COURT OF SAMOA
Police v Samaila [2021] WSDC 1

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Case name:	Police v Samaila
Citation:	[2021] WSDC 1
Decision date:	10 August 2021
Parties:	POLICE v PETELO SAMAILA aka SEFO SAMAILA male of Moamoa and Leulumoega-tuai
Hearing date(s):
File number(s):	D1917/20
Jurisdiction:	Criminal
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Matautia Raymond Schuster
On appeal from:
Order:	- The defendant is therefore convicted and time served. The defendant is ordered to undertake 100 hours community work and 12 months’ probation. He is further ordered to pay $500 as restitution to the victim’s family within seven (7) days from today. In default, the defendant will serve the balance of the prison sentence of two months and seven days.
Representation:	Ms F. Ioane for Prosecution Mr G. Latu for defendant
Catchwords:
Words and phrases:
Legislation cited:	Crimes Act 2013; Crimes Ordinance 1961s54 (a), 60
Cases cited:	Police v Ah Kuoi [20SDC W1 (11 May 2016), Police v Finau [2006] WSSC 33 (24 May 2006); Police v&#160 [2016] WSSC 40 C 40 (31 March 2016), Police v Leiata60[2015] W11 Police v Oto [2009[2009] WSSC 53 (8 May 2009), Police v Puni [2012] WSSC 129 (21 December 2012), Police v Tauese [2018] WSFVC 2 (17 January 2018),

Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D
PETELO SAMAILA a.k.a SEFO SAMAILA, male of Moamoa and Leulumoega-tuai
Defendant

> Counsel Ms F Ioane for Prosecutions

Mr G. Latu for defendant Sentence:23 July 2021

Decision:10th August 2021

SENTENCING DECISION OF JUDGE SCHUSTER

1. The defendant appears for sentencing on one count of indecent assault at Leulumoega-tuai on 6^th April 2020 in breach of section 60 of the Crimes Act 2013. The offence carries a maximum penalty of 5 years imprisonme/li> tyle='text-indentndent:0pt; margin-top:0pt; margin-bottom:0pt;' value='2' value="2"> The dThe defendant entered a guilty plea to the charge on the 5^th July 2021.

The Offending

3. According to the Prosecution Amended Summary of Facts accepted by the defendant through counsel, he is a 35 years old male of Moamoa and Leulumoega- tuai, married with two (2) children. At the time of the offending, the defendant was a Vice Principal of Paul VI College.
4. The victim is seventeen (17) years old and a Year 12 student of Paul VI College. On the 6th April 2020 between 10 and 11am, the victim was lured by her Biology teacher from the school to another student’s home “to work on another student’s assignment”. Sometime later, the victim and the Biology teacher left and he took her to his cousin’s home to wait for a ride to take them back to school. This, allegedly, is where the victim was first sexually violated by the Biology teacher. This matter is pending before the court at the time of this sentence.
5. This was intervened by the defendant who came calling on the Biology teacher. The defendant appeared as a rescuer to the victim. However, the defendant showed his intention to do harm to the victim by saying to the Biology teacher: “E a ua uma ga e mea? ... Ia oa ga mea ua uma ga e mea ae le aumai se’i ou mea a’u ia”. As the Biology teacher tried to go with the victim to drop her off, the defendant approached and said to the victim that he wanted to touch her breasts. Despite the victim refusing, the defendant still tried to touch her breasts and succeeded in touching her left breast for a few seconds. Fortunately, it started to rain causing the defendant to leave the victim and went to wind up the windows of his car.
6. The defendant was subsequently apprehended and charged with indecent assault. He entered a not guilty plea on the 11 August 2020 and the matter set for hearing on 2 December 2020. However, after several adjournments, the defendant vacated his not guilty plea and substituted with a guilty plea on 29 April 2021. The defendant is a first offender.

The Accused

7. There was no Pre-sentence report ordered or requested by counsel. A character letter from the Principal of Paul VI College states that the defendant holds the matai title of Muli’aumalu from Leulumoega and serves as a deacon for the Catholic Church at Leulumoega-tuai. He was a trusted and reliable faculty member who usually speaks eloquently on formal occasions for the School. He was also a successful sports master.
8. Mr Latu in his written submissions states the defendant offending as out of character. He started teaching in 2008 after completing his diploma in teaching. He has a Bachelor of Education and is undertaking a post graduate course in Development Studies. The family matai Togiatele Tolufale Taulapapa describes the defendant as honest, respectful and humble. Reverend Keneti Teo, the defendants church deacon, describes the defendant as reliable in his role as the church Finance Committee and Youth Group.
9. The defendant and his wife had done a traditional “ifoga” to the victim, her parents and grandmother. The defendant also gave $300 Tala and one (1) large fine mat. This was accepted by the victim and her family. It is also noted that the defendant was taken before the Village Council and fined $2000 Tala plus two (2) large fine mats as confirmed by the village mayor, Ootia Talosaga.
10. Mr Latu submitted that the defendant was truly remorseful and has personally suffered the consequences of being incarcerated for three (3) weeks, terminated from his teaching position as well as the embarrassment and shame that has come with being charged with a criminal offence for the first time.

The Victim

11. The victim is now 18 years old of Manono-uta but 17 at the time of the offending. In the Victim Impact Report, the victim states that there was no physical effect of the defendant’s actions. However, she feels disgusted because of the defendant’s actions given he was the vice principal of the school she attended. She feels embarrassed and ashamed as she had become the gossip of her peers at school and on social media. This has resulted in her confessing to her parents that she no longer wanted to go to school.

Aggravating features of the offending

12. In respect of the defendants offending, there are a number of aggravating features as highlighted by the prosecution in their sentencing memorandum. These are:

(i) the age difference with the victim of about 18 years,

(ii) the vulnerability of the victim at such a young age and that she was a student of the school,

(iii) the breach of trust given the defendants position as a teacher and vice principal of the school,

(vi) the nature of the offending being opportunistic rather than pre-meditated where the defendant took advantage of the victim when she was already in a dire situation from the unlawful actions of the Biology teacher; and

(v) the defendants neglect to act responsibly in a situation where as a teacher he was required to protect a student in distress

The mitigating features of the offending

13. There are no mitigating features in respect of the defendants offending.

Aggravating features as an offender

14. The defendant is a first offender and there are no aggravating features personal to him as an offender.

Mitigating Features of offender

15. I take into account the defendant’s early guilty plea, his previous good character, the ifoga and apology to the victim and her family, the payment of reparations which was accepted, the fine he was required to pay to the village and presentation of fine mats as well as the consequences of loss of good reputation, embarrassment to him and his family and perhaps permanent loss of his career as a teacher.

Previous sentencing tariff

16. In Police v Finau [2006] WSSC 33 (24 May 2006), the defendant was charged under the repealed section 54(a) of the Crimes Ordinance 1961. This was the predecessor of the current section 60 which carried a maximum penalty of five (5) years imprisonment. The 31 years old defendant who was married with children went to where the 20 years old victim was staying and found her sleeping. He laid himself upon her and kissed her on the lips, caressed her breasts and tried to touch her private part. The defendant had a previous conviction of “found by night” translated in Samoan as “moetolo”. It was when the defendant was on supervision for that “moetolo” offence that he committed this later offence. The defendant entered a guilty plea to the charge. His Honour Chief Justice Sapolu, as he then was, having considered similar offending (but where the victims were under the age of 16 years) where imprisonment terms were ordered, convicted and ordered the defendant to serve an imprisonment term of 15 months.
17. In Police v Oto [2009] WSSC 53 (8 May 2009), the defendant was a 62 years old EFKS church pastor. The victim was 17 years old at the time of the offending and living with the defendant as a member of his household. The facts as accepted by the court during hearing is that the defendant asked the victim to come into his room by pretense of a massage. It was then that he proceeded to touch her breasts and upper leg as well as penetrating her private part digitally. Nelson J found that the offending was pre-meditated and conducted with force. The victim was put through the trauma of re-living the event on trial was an aggravating factor of the offending as well as the gross abuse and betrayal of trust.
18. Nelson J stated:
    • “There has been a gross abuse and betrayal of the trust placed in him by the complainant, the complainants family and his community. Those factors coupled with the need for the court to protect young women from these kind of assaults by older more experienced males means a sentence of imprisonment must be imposed, the real question is how long.”
19. The starting point was three (3) years. Twelve months was deducted for the village fine of $12,000 Tala paid by the defendant; for his previous good character six (6) months was deducted; and six (6) months was deducted for the apology and other mitigating factors such as loss of his ministerial calling, etc. the defendant was convicted and ordered to serve an imprisonment term of 12 months.
20. In Police v Puni [2012] WSSC 129 (21 December 2012), Justice Slicer took a starting point of three (3) years imprisonment for an offence under section 54(a) of the Crimes Ordinance 1961. The defendant was a 65 years old male medical practitioner, married with children. The defendant was found guilty of indecent assault of a 30 years old married woman under the pretense that he was conducting a vaginal medical procedure. He was a first offender. His Honour deducted a third of the sentence for the defendants age, his poor health and service to the community. A further third was deducted in account of $7,900 fine paid to his village of which he is a matai, $3,500 to his family for the embarrassment he had brought and his ifoga and apology to the victim’s family. The defendant was convicted and sentenced to twelve (12) months imprisonment.
21. In Police v Iloa&#1016] 40 C 40 (31 Mar1 March 2016), the defendant was a 35 years old male living with the complainant’s family as he was a friend of the complainant’s son. In a defended hearing, tfendas found guilty puty pursuanrsuant to section 60 of the Crimes Act 2013 for approaching the 36 years old complainant whilst she was sleeping and fondled her breasts. The defendant was a first offender. Justice Tuatagaloa considered the gravity of the offending was at a lower end and therefore an imprisonment term was not appropriate. The defendant was convicted and ordered to undertake 40 hours community service and three (3) months supervision.
22. In Police v Ah Kuoi [20SDC W1 (11 May 2016), th), the defendant was a 72 years old male, married with four (4) kids and grandchildren. The victim was at the time of the offending 17 years old and known to the defends theend tme chu church. rch. The dThe defendant picked up the victim on the road with the promise of taking her to where she wanted to go but instead took her to an isolated place. It was there that the defendant forcefully touched the victim’s breasts and kissed her on the lips. When she did not give in to his sexual advances, the defended punched her in the stomach and swore at her.
23. His Honour District Court Judge Clarke, as he then was, referred to the case of Police v Iloa and distinguished the facts given the violence and force involved. However, His Honour stated in paragraph 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 < Leia#1ua [2WSSC a>&#17 DecemDecember 2015) for example in a matter invr involving sexual connection with a 14 ye14 year old stated, a different charge to your matter:
      • “The prevalence of sexffending on young girls irls justifies stern measures to convey society’s denunciation to deter men, old and young, in theission of similar offences, and to protect immature young girls.”
24. His Honour took a starting point of eighteen (18) months imprisonment. For the defendant’s previous good character, remorse and apology, four (4) months was deducted. For the defendants early guilty plea, five (5) months was deducted leaving a balance of nine (9) months imprisonment. The defendant was convicted and sentenced to nine (9) months in prison.
25. In Police v Tauese [2018] WSFVC 2 (17 January 2018), the 23 years old defendant entered a guilty plea to indecently assaulting his 19 years old sister by forcefully touching her breasts in a public toilet after a church service. The court took into account that the defendant had mental issues leading to the offending. Her Honour District Court Judge Saaga considered Police v Iloa and Police v Ah Kuoi in considering sentence and stated:
    • “23. Many of the indecent assault cases result in imprisonment terms especially if the victims are related to the perpetrator and particularly if they are young children involved. Even though your sister is not a young child, the special relationship between you two adds weight.
    • 24. In Police v Iloa (2016) WSSC 40 which also involved the touching of a breast, the offender was given a non custodial sentence. The offender however was a first offender and he was not related to the victim.
    • 25. Your action is totally inappropriate. She is your sister. Your mother has also pleaded to the court for you to be remanded in custody because it is only your sisters and her at home and she is scared that you may commit another similar offence. You are not a first offender.
    • 26. In Police v Ah Kuoi (2016) WSDC 21, Judge Clarke prior to his elevation to the Supreme Court sentence started at 18 months. The starting point for this matter will be 9 months. There was a higher degree of violence in Police v Ah Kuoi (supra)”
26. Her Honour took nine (9) months imprisonment as a starting point and deducted one (1) month for the defendant’s guilty plea and further deducted six (6) months for justice delayed in dealing with the defendant’s psychiatric condition whilst he was in custody. The defendant was convicted and ordered to serve the balance of two (2) months imprisonment.

Discussion

27. The gravity of the offending in my view would be measured based on the circumstances of each case. In this case, the circumstances involve a student-teacher relationship where there is always an element of trust, expectation and a responsibility on the part of the school administration and each teacher to keep the school environment as a safe learning zone and/or refuge for all students. The fact that the student was outside of school grounds, as it was in this case, does not in any way or form relieve any teacher from that presumed professional responsibility in the face of an unlawful criminal conduct. This offending in the circumstances where professional responsibility is involved would in my view be similar to the circumstances of Police v Oto and Police v Puni but distinguished as to the gravity of the offending. The former was pre-meditated, the latter opportunistic. In both cases, the indecent acts were continual for some time and much more than just touching of breasts.
28. Police v Ah Kuoi and Police v Tauese fall under the usual category of cases where a male assailant takes physical advantage of the more vulnerable female victims and distinguished from this case as the gravity of the offending was moderate to high end given the violence involved. Furthermore, the defendant in Tauese was not a first offender. Police v Iloa would appear the circumstances to be similar to the defendant but for the absence of a professional relationship involved and that the defendant put the victim through a full hearing. It was opportunistic, the defendant was a first offender and abused the trust of the family by allowing him to stay in their home.
29. Prosecution suggest an imprisonment term is appropriate with a starting point of three (3) years given the gravity and prevalence of this type of offending in school environment involving teacher – student relationship. Mr Latu disagrees and submits that an imprisonment term would be too harsh and out of proportion to the gravity of the offending. Nevertheless, Mr Latu submits that if the court were to consider an imprisonment term, the three weeks that the defendant spent in custody pending first mentions would suffice.
30. I echo the concerns of the court as to the prevalence of these types of offending especially in professional relationships of student-teacher as enunciated in Police v Oto and Police v Ah Kuoi. Justice Nelson specifically refers to Samoa’s commitment to uphold the protection of children under the Convention of the Rights of the Child and to be reflected in judicial rulings. Although the victim was 17 years old at the time of the offending, she is still by Samoan law an infant[1]. Given the Governments responsibility to protect our young children, the rule in my view should be a sentence of imprisonment unless there are exceptional circumstances to warrant a sentence other than imprisonment.
31. Her Honour Tuatagaloa considered that the gravity of the offending in Iloa was at the lower end and the defendants previous good character warranted a non- custodial sentence despite the fact it was a defended hearing. The latter issue alone would make this case more appropriate to a non-custodial sentence over Iloa. However, we must be reminded that subsequent actions of defendants to remedy their offending are after the fact and to show whether truly remorseful, rehabilitatory and restorative. However, it is generally accepted that this can in no way restore the innocence that has been stolen from the victim, the embarrassment and the public stigma from her own peers as a result of the defendants offending as noted in the Victim Impact Report.
32. I am of the view that the starting point of three (3) years imprisonment is excessive given the aggravating circumstances of the offending. If a custodial sentence is warranted, I am of the view that a starting point of 12 months maximum for low end offences, 13 – 24 months for medium end offences and 25 months plus for high end offences. The high end starting point would seem consistent with Police v Puni and Police v Oto where a starting point of three (3) years was taken by Justice Slicer and Justice Neslon respectively given the seriousness of the offending involving, inter alia, professional/special relationship and digital penetration. The medium end in my view would be consistent with His Honour Clarke’s sentencing in Ah Kuoi given the indecent act coupled with the associated violence involved. I would respectfully include the offending circumstances in Police v Tauese in the mid-range offences the victim being his sister and the violent act and character of the defendant based on his previous convictions be it perhaps because of some temporary mental disorder.
33. I am of the view that the offending circumstances of this case warrant a custodial sentence given the need to send out a strong message that the protection of children in a school environment especially young girls from like-minded male teachers must receive zero toleration. It is an affront and toleration of the moral degradation of society especially the fact that our moral compass is cantered around the Christian God and Christianity should we not continue to be lenient in the face of an increase in such offending.
34. This sentence tariff is not meant to be exact as each case would have to be considered based on its own circumstances. Justice Slicer in Police v Puni provided a percentage formula in deducting or adding time for mitigating and aggravating factors. I would adopt that formula to assist in consistency when taking into account aggravating and mitigating features.
35. In such cases of indecent assault under section 60 of the Act, given the starting point (whatever that will be) based on the circumstances of each case, I consider reasonable a maximum of 25% reduction for early guilty plea; a maximum of 20% for previous good character and community service; a maximum of 20% for traditional penalties; and a maximum of 20% for traditional apology and any reparations made.
36. Accordingly, I will take a starting point of 12 months in this case. I will deduct:
    1. 25% (three (3) months) for the early guilty plea which has saved the cost and time of a full hearing and the victim having to relive the trauma of the offending in a public hearing
       2. 16.6% (two (2) months) for the defendant’s previous good character and service to the community especially as a teacher since 2008
          3. 16.6% (two (2) months) for the payment of the village fine and two (2) large fine mats
          4. 16.6% (two (2) months) for the ifoga, apology and reparation of $300 Tala
       5. 6.30% (twenty-three (23) days) the defendant was held in custody before he was remanded on bail
37. This leaves a balance of 18.9% (two (2) months and seven (7) days). This was a costly error of judgment on the part of the defendant bringing an admirable and respectable career to a likely end. I recognize that this error has seriously affected his wife and family economically and the embarrassment within the social confines of their community. As Mr Latu had put it, the offending lasted seconds but the consequences considerable and life altering not only for the defendant but his immediate family who will not be immune from the consequential effects and stigma of the defendants offending. For a first offender, many will accept that this is a burden that is far heavier than a prison sentence.
38. I am prepared to show mercy to the defendant with the hope that the defendant will use what has happened to try and restore as well as redeem his ways and bring trust back into his immediate family circle and community. I will remit the remaining balance of the defendant’s sentence considering the consequential circumstances referred to above.

The penalty

39. The defendant is therefore convicted and time served. The defendant is ordered to undertake 100 hours community work and 12 months’ probation. He is further ordered to pay $500 as restitution to the victim’s family within seven (7) days from today. In default, the defendant will serve the balance of the prison sentence of two months and seven days.

JUDGE MATA’UTIA RAYMOND SCHUSTER

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^[1] Section 2 Infants Ordinance 1961