Police v Apolone [2005] WSSC 39 (16 December 2005)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

TOELAU APOLONE
of Mulivai Safata.
Accused

Counsel:

P Chang for prosecution
Accused in person

Sentence: 16 December 2005

SENTENCE

The charges

The accused appears for sentence on two counts of indecent assault each of which carries a maximum penalty of seven years imprisonment. To the charges the accused pleaded guilty at the first opportunity.

The offending

On Saturday, 17 September 2005, the accused who is a fifteen year old male from the village of Mulivai, Safata, found the victim who is a nine year old girl alone at her family’s home at Mulivai, Safata. He talked with the victim for a while and then he started taking off her clothes. He then took off his clothes. He then lay the victim down, stroke his hand around her body touching her private part while kissing her.

On Saturday, 24 September 2005, the accused again went to the house of the victim’s family. He took the victim to the toilet where he pulled down her pants and then licked her private part. When they came out of the toilet they were noticed by one of the victim’s relatives who informed the victim’s mother. When the victim was questioned by her mother, she related what the accused had done to her. The victim’s mother then reported this matter to the police.

Subsequently, the accused’s family made a formal apology to the victim’s family which was accepted. The accused has since left his village and now lives with an uncle near Apia.

The accused

As already mentioned, the accused is fifteen years old. He was attending school when these offences were committed. But since he left his village because of these offences, he is no longer attending school. He told the probation service that he still wants to go to school if given the opportunity. He also told the probation service that three days before the first indecency he committed on the victim, he had observed two horses in sexual union which sexually aroused him. So when he found the victim alone in her family’s house he decided to try out on her what he had observed to find out how it felt for him. He also told the probation service that he now regrets what he had done.

The accused is a first offender and it appears from the pre-sentence report prepared by the probation service that he had been a person of good character prior to the commission of these offences.

The victim

As already mentioned, the victim is nine years old. Even though there is no victim impact assessment report, the probation service has expressed the view that the accused’s actions could have a very detrimental impact on the victim in the long term. It appears the victim is still living with her family at Mulivai, Safata.

Mitigating circumstances

The principal mitigating circumstance in this case as pointed out by counsel for the prosecution in her submissions to the Court is the young age of the accused. Other mitigating circumstances are the accused’s plea of guilty to the charges at the first opportunity, his precious good character prior to the commission of these offences, his expression of remorsefulness, and the formal apology made by his family to the victim’s family which was accepted.

Aggravating circumstances

The circumstances of this offending are quite serious and are aggravated by the young age of the victim. This is also not a case of one incident but two separate incidents of indecency.

The decision

The sentences which this Court has imposed in cases of indecent assault have varied from terms of imprisonment to terms of probation. Where the offending is as serious as it is in present case, the normal punishment has been imprisonment in the case of adult offenders. But in some of the indecent assault cases involving young offenders, terms of probation have been imposed. For example, in Police v Lafaele Paulo [2002] WSSC 1, where a 52 year old catechist was found guilty after a defended hearing of having indecently assaulted a 12 year old girl who was a member of his parish, Vaai J imposed a sentence of two years imprisonment, whereas in Police v Liki Faaaliga Tofa [1999] WSSC 2 where a 16 year old male pleaded guilty to one charge of having indecently assaulted a 7 year old girl, Wilson J imposed a sentence of two years probation with a condition that the offender was to undertake 120 hours of community service during his term of probation.

Counsel for the prosecution submitted that the gravity of the offending in this case justifies a custodial sentence but if due to the young age of the accused and the fact that he is a student and a first offender the Court decides to impose a non-custodial sentence, then a condition be imposed for the accused to undertake a number of hours of community service. This submission reflects the approach this Court has adopted when passing sentence in indecent assault cases. In all the circumstances, I have decided to impose a non-custodial sentence. But I must give the accused a stern warning. If you appear before this Court again on any sexual offence you will most likely to go to prison. Your young age will no longer be of any assistance to you. Take this opportunity very seriously to continue with your education and to redeem yourself while you are still young with your future still ahead of you for the Court is not likely to show any more mercy on you if you re-offend.

In all the circumstances, the accused is convicted and sentenced to 2 years probation with the added condition that he is to undertake 200 hours of community service during his term of probation.

CHIEF JUSTICE