Police v Sakarata [2006] WSSC 38 (29 June 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

LEALOA’IA SAKARATA
male of Vaitele-uta.
Accused

Counsel: A Lesa for prosecution
Accused in person

Sentence: 29 June 2006

SENTENCE

The charge

The accused is charged under s.52(1)(a) of the Crimes Ordinance 1961 with the crime of indecent assault which carries a maximum penalty of seven years imprisonment. The accused pleaded not guilty to the charge and his trial was set down for hearing on 9 June 2006. On the date of trial the accused changed his plea to one of guilty.

The offending

According to the summary of facts prepared by the prosecution, on Friday afternoon, 9 December 2005, the victim who is eight years old and two of her female cousins were out in the village of Vaitele-uta to collect firewood. While they were walking along the road, the accused who owns and operates a taxi pulled up in his taxi and ordered the girls to jump in. The accused then drove the girls to the place where they were to collect firewood. When they arrived at where the girls were to collect firewood, he ordered two of them to go and collect firewood. He instructed the victim to remain with him in the taxi. While in the taxi, the accused proceeded to remove the panty of the victim and began to fondle her vagina with his index finger. He did this until the girls who went to collect firewood returned. The accused instructed the victim not to tell her parents about what had happened.

The victim

The victim is eight years old. Her grandfather is a brother of the accused. Her father is a nephew of the accused. She lives with her parents on the same plot of land at Vaitele as the accused. There is no victim impact assessment report so that it is not possible to determine the emotional and psychological effect of the actions by the accused on the victim.

The accused

The summary of facts produced by the prosecution and the pre-sentence report prepared by the probation service differ as to the age of the accused. However, if the correct date of birth of the accused is 19 July 1957 then he is now close to 49 years of age. I will accept that is the correct age of the accused. The accused is also single.

As it appears from the pre-sentence report, the accused had limited formal education having reached only primary school level. Upon leaving school, he took up employment on other people’s plantations for more than thirty years until recently when he was able to own and operate his own taxi to support his family financially.

The pre-sentence report also states that during the interview of the accused by the probation service, he came through as a person of low intellectual level. His response to questions was more like that of a young person. The pre-sentence report also states that the accused comes from an underdeveloped and over populated family environment.

The accused has a previous conviction which is more than 35 years old for a different kind of offence. I will disregard that previous conviction for present purposes and treat the accused as a first offender.

There is no evidence of any reconciliation. This is because, as the victim’s mother told the probation service, the accused has been in custody from the time of the offence up to now.

Mitigating circumstances

I take into account in mitigation the accused’s plea of guilty to the charge even though it was not made at the first available opportunity. The accused told the Court that he has been thinking about his not guilty plea and decided not to lie to the Court. So he decided to change his plea to one of guilty.

I also take into mitigation the fact that the accused should be treated as a first offender as his only previous conviction is more than 35 years ago and it was for a different kind of offence in any event. The accused is also a person of low intellectual level. He has also apologised to the Court.

Aggravating circumstances

I accept the submission by counsel for the prosecution that the aggravating circumstances in this case are the young age of the victim, the age difference of 41 years between the accused and the victim, breach by the accused of the trust of the victim who is a granddaughter of his own brother, and the element of pre-meditation involved.

The decision

Counsel for the prosecution in his well prepared submissions referred to statements of this Court in Police v Paulo [2002] WSSC 1 per Sapolu CJ and Police v Wright [2003] WSSC 30 per Vaai J as reflecting the purposes of sentencing in cases of indecent assault. The objectives of sentencing for indecent assault which are reflected from those cases are in my opinion the protection of society from acts of indecency committed on its young members, particularly young girls who are so often the victims of such crimes; retribution or punishment of the offender which must be appropriate for the particular crime committed and should reflect its condemnation by the community; and deterrence which is an attempt to restrain the offender from re-offending and other like-minded people from committing the same crime. Rehabilitation which is another objective of sentencing is aimed at reforming the offender and the prevention of future offending. This objective is often relevant in the cases of young offenders: see Police v Tofa [1999] WSSC 2 per Wilson J and Police v Apolone [2005] WSSC 39 per Sapolu CJ. In this case the protection of society, retribution and deterrence are relevant considerations which when applied to the present circumstances call for a custodial sentence.

I will take 2½ years as a starting point for sentencing. For his delayed plea of guilty I will give the accused a discount of 10%. That leaves a sentence of 2 years and 3 months imprisonment. I will deduct a further 3 months for the other mitigating circumstances which then leaves a sentence of 2 years imprisonment.

The accused is therefore sentenced to 2 years imprisonment. The period of 6½ months during which the accused has been remanded in custody from 16 December 2005 until now is to be further deducted from that sentence.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution