Police v Lema [2025] WSDC 2 (11 April 2025)

IN THE DISTRICT COURT OF SAMOA
Police v Lema [2025] WSDC 2 (11 April 2025)

Case name:	Police v Lema
Citation:	[2025] WSDC 2
Decision date:	11 April 2025
Parties:	POLICE (Informant) v SESOLE LEMA (Defendant)
Hearing date(s):
File number(s):	2023-04069 DC:/CR/UP
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Mata’utia Raymond Schuster
On appeal from:
Order:	The defendant is convicted and ordered to pay a fine of $300 plus $200 compensation to the victim by Thursday 17th April 2025 before 3pm. In default, the defendant will serve 5 months’ prison. He is also to do 100 hours of community work under the direction of the Probation service.
Representation:	Police Prosecution Division for Prosecution Mr G. Patu for Defendant
Catchwords:	The offending, the accused, the victim, aggravating features of the offending, mitigating features of the offending, mitigating features of offender, discussion, the penalty
Words and phrases:
Legislation cited:	Crimes Act 2013 s59, s60
Cases cited:	Police v Petelo Samaila [2021] WSDC 1 (10 August 2021); Police v Puni [Justice Slicer]; Police v Oto [Justice Nelson]; Police v Ah Kuoi [Justice Clarke 2016 WSDC 21 (11 May 2016); Police v Taunese; Police v Iloa [2016] WSSC 40 (31 March 2016).
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

SESOLE LEMA, male of Vaitele-fou

Defendant

Counsel: Police Prosecution Division

Mr G. Patu for Defendant Sentence hearing: 19th December 2024

Decision: 11th April 2025

SENTENCING DECISION

1. The defendant appears for sentencing on one count of indecent assault pursuant to section 60 of the Crimes Act 2013:
   • 60. Indecent assault – A person is liable to a term of imprisonment not exceeding 5 years who indecently assaults another person.
2. The offence carries a maximum penalty of 5 years imprisonment. The defendant entered a guilty plea to the charge on the 24^th October 2023.

The Offending

3. According to the Prosecution Amended Summary of Facts dated 31^st May 2024 accepted by the defendant through counsel, he is a 25 years old male of Vaitele-fou, Taga and Vaitoomuli, Palauli. He is single and at the time of the offending, was working at Farmer Joe Supermarket, Vaitele in the meat freezer division.
4. The victim at the time of the offending was 23 years old, married with two children and also worked at Farmer Joe Supermarket in the bakery division.
5. On Thursday 17^th August 2023 at about 9am, the victim was instructed to pick up mincemeat from the freezer division for the bakery. The victim conversed with the defendant to complete the mincemeat order for the bakery. As she was about to leave with the trolley containing the mincemeat order, the defendant called out for her to wait as there was one more packet left for them in the freezer. The victim called out to the defendant to bring the remaining packet but the defendant responded for her to go get it herself.
6. The victim then went towards the cooler to pick up the remaining mincemeat packet. As she approached the door of the cooler looking inside, the defendant came out and pushed the victim inside the cooler. He stepped inside the cooler behind the victim and closed the door.
7. The defendant proceeded to take hold of the front part of the victims Tee shirt and pushed her back against the wall of the cooler. He then pushed himself up against the victim, pinned her head back by grabbing her neck and started kissing and licking her lips. The victim tried to push him back and away from her.
8. The defendant continued to kiss the victim while she was trying to remove the defendants’ hand from her neck. Eventually, the victim managed to push the defendant away enabling her to come out of the cooler. She immediately told some of the workers what the defendant did to her.

The Accused

9. The defendant is the eldest of five children and completed Year 13 at Wesley College. He commenced employment at Farmer Joe after college until termination relating to this matter. The testimonies from his parents describe the defendant as generally obedient, hardworking, attends church regularly, does not consume alcohol or cigarettes and likes to stay home instead of associating in the village. The defendants Pastor and Village Mayor also testify to the defendants’ good nature, he likes to attend the Youth, and that he is committed to taking care of his grandmother. He currently works at Lucky Foodtown as a butcher.
10. Mr Patu in his written submissions states the defendants’ offending was out of character and that the gravity of the offending was at the low end of the spectrum. He submits that the defendant was fooling around but that he went too far in that he inappropriately touched and kissed the victim without her consent.
11. Subsequent to the offending, the defendant went and apologized to the victim and her family and that he was remorseful of his inappropriate actions. The defendant underwent the Teen Challenge re-habilitation program as well as a spiritual program with his family Pastor.
12. The defendant is applying for a discharge without conviction sentence as he fears that a conviction would jeopardize his chances of getting a job with the seasonal workers program.

The Victim

13. Despite the trauma, the victim has accepted the defendants’ apology and plea for forgiveness. At the time of the offending, she felt scared, worried and helpless. Never did she think that something like this was going to happen to her at work. She had since left Farmer Joe when she found out that the defendant was transferred to another section instead of termination.
14. Unfortunately, this is the only information relating to the victim that is before me. There is no information as to the current status of the victim whether working or not or staying home and how she is coping following the aftermath of this offending.

Aggravating features of the offending

15. 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) breach of trust in a workplace,

(ii) high level of pre-meditation

(iii) vulnerability of the victim

(vi) multiple acts of offending to achieve the purpose of committing an indecent act; and

(v) the negative impact, trauma, and embarrassment of the offending on the victim

The mitigating features of the offending

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

Aggravating features as an offender

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

Mitigating Features of offender

18. I take into account the defendant’s early guilty plea, his previous good character, the apology to the victim and her family, that the victim and her family have forgiven the defendant, his attendance of the Teen Challenge program and the spiritual program with his Pastor. I also take into account to a certain degree the public humiliation to his family reputation as a consequence of his offending.

Previous sentencing tariff

19. The leading case so far as sentencing is concerned for offences brought under section 60 of the CA2013 is Police v Petelo Samaila^[1]. In paragraph 32, I said this:
    • ...... 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 Nelson 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.

Discussion

20. I accept Prosecution submission in relation to the aggravating factors of the defendants offending except for the pre-meditation factor and multiple acts of offending to achieve the purpose of committing the indecent act. The facts can only amount to support an assertion of opportunity. There is no evidence to show pre-mediation on the part of the defendant or circumstances to indicate that he intended to commit an indecent act prior to the offence taking place unlike Police v Ah Kuoi.
21. The indecent assault is the defendant imposing himself unto the victim, pressing his body and pinning her to the cooler wall enabling him to kiss and lick her lips. The incident occurred for a moment. It can be inferred it would have been unlikely the indecent assault would have gone any further given the circumstances of where it happened in a busy workplace. Perhaps this is why the defendant did not persist in the act enabling the victim to walk away. This is evident of the opportunistic nature of the offending. But even if I were to be unsure of the common sense facts and knowledge of human nature to be inferred in this circumstance, it would be to the favour of the defendant that I must cast that doubt.
22. These acts of sexual assaults or indecency involving men usually arise out of two circumstances. Firstly, where the perpetrator or instigator is so debauched he cares not what the victim thinks or feels but for his own sexual gratification. Secondly, the perpetrator or instigator misreads or misunderstands what a woman may say or do believing to be a reciprocal attraction but finding out it was not. Regrettably, the act that was supposed to be intimate and reciprocal had turned offensive and insulting. There is, in my view, no such thing as an accident in such cases in terms of these two scenarios.
23. Given the facts, I am of the view that this case clearly falls in the second scenario. This does not at all excuse such acts. Men of all ages and sizes must not be too quick to interpret what a woman says or does as behaviour tantamount to an opportunity to fool around.
24. I am satisfied that the gravity of the offending in this case falls within the lower end of the spectrum. It is reiterated that the general rule so far as sexual offence sentences are concerned pursuant to section 59 and 60 of the CA2013 must be custodial for deterrence and to renounce societies detest of such conduct. In saying that, the court must also take into account exceptional circumstances relating to each case that must have significant bearing rather than just a trivial nature.
25. Mr Patu and the Probation report support a non-custodial sentence. The Prosecution assert that a custodial sentence is appropriate with a starting point of 18 months consistent with Police v Ah Koui^[2]. The defendant in the Ah Koui case was 72 years old and was familiar to the 17 years old victim attending the same church and their houses are not far apart. The defendant happened to pick up the victim at about 630am to offer her a ride to work. On the second occasion, the defendant picked up the victim about 630am, detoured to an isolated location, asked for sex, fondled the victims breasts, pulled her hair and forcefully kissed her on the mouth. As the victim resisted, the defendant punched her in the stomach and swore at her. He verbally threatened her to prevent her from telling what happened to anyone.
26. The prosecution also referred to Police v Iloa^[3]. The 25 years old defendant indecently assaulted the 36 years old female victim by sneaking upon her as she was sleeping. He fondled her breasts and kissed her on the mouth. Prior to this, the defendant did exactly the same indecent act to the 36 years old victims’ daughter who was 16 years old at the time. The defendant was staying at the victim’s home as a friend of the 36 year old victim’s son. Justice Tuatagaloa convicted and sentenced the defendant to 3 months’ supervision as to the indecent act on the mother and 40 hours’ community work and 6 months’ supervision as to the indecent act on the child.
27. There is a clear distinction between this case, Ah Koui and Iloa. There is a close parallel with Iloa except for the force applied in this case but no more than just to test the response of the victim rather than to overcome or bring to submission. Furthermore, there were 2 victims (mother and daughter) in Iloa which showed the propensity of the defendant to be comfortable in such a heinous act especially when a guest at the victim’s home.
28. In the scale of lower end offences under section 60 of the CA2013, I would place the gravity of this case below that of Iloa. The defendant was a first offender, a young and hardworking man and genuinely remorseful due to his poor judgment. His successful participation his rehabilitation program with Teen Challenge and his Pastor are indicative of his desire to redeem himself and be a better person.
29. Having arrived at that conclusion, I am of the view that a custodial sentence would not be appropriate in this case. However, the offence is seriousness enough to warrant a conviction. I am not satisfied that the direct or indirect consequences of a conviction would be out of all proportion to the gravity of the offending. The application for a discharge without conviction is denied.

The penalty

30. The defendant is convicted and ordered to pay a fine of $300 plus $200 compensation to the victim by Thursday 17^th April 2025 before 3pm. In default, the defendant will serve 5 months’ imprisonment. He is also to do 100 hours of community work under the direction of the Probation service.

JUDGE MATA’UTIA RAYMOND SCHUSTER

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^[1] [2021] WSDC 1 (10 August 2021)
^[2] [2016] WSDC 21 (11 May 2016)
^[3] [2016] WSSC 40 (31 March 2016)