Police v Malaki [2007] WSSC 51 (28 June 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

MALAKI MALAKI
male of Alamagoto and Vaitele-fou.
Accused

Counsel: M T Lui for prosecution
Accused in person

Sentence: 28 June 2007

Sapolu, CJ

SENTENCE

The charge

The accused is charged under s.52 (1) (a) of the Crimes Ordinance 1961 with the crime of indecent assault. The accused initially pleaded not guilty to the charge. However, after the trial had proceeded on the date of hearing, the accused changed his plea to one of guilty.

The offending

The summary of facts shows that on the evening of 7 December 2006, the accused a 36 year old male of Alamagoto and Vaitele-fou had dinner at the house of the victim’s family at Vaitele-fou. After having dinner, the accused, the victim and the victim’s family watched TV. Later on, the victim with her mother and siblings went to sleep in their room which is next to the room where the accused was still watching TV. Sometime after midnight, the accused went into the room where the victim was sleeping and rubbed her leg. He then reached up to the victim’s vagina and rubbed it. The victim was awakened and she cried which made her mother woke up. When the victim was asked by her mother about what had happened, the victim replied that the accused had touched her vagina. The victim’s mother then chased the accused, who was still watching TV, out of the house.

The accused

The accused is a 36 year old male. As it appears from the pre-sentence report, the accused is single and works as a groundsman. He told the probation service that he was good friends with the victim’s parents and sometimes he stayed over at the house of the victim’s family. This was confirmed by the victim’s mother who told the probation service that her family had trusted the accused and treated him as a ‘brother’ but the accused had betrayed her family.

It is also appears from the pre-sentence report that during the interview of the accused by the probation service, he told the probation service that he was remorseful. However, it was evident to the probation service during the interview that the accused showed no sign of remorse and thought lightly about his offending.

It also appears from the pre-sentence report that the accused told the probation service that he had apologised to the victim’s family. However, the victim’s mother told the probation service that there was never any reconciliation between the accused and her family.

The accused is a first offender.

The victim

The victim is six years old. She is presently attending school at Year 3. It appears from the victim impact report that the victim has suffered psychological trauma as a consequence of what the accused did to her. She no longer wants to live at Vaitele-fou. At night she has trouble sleeping. As a result she is tired for most days. The victim has also become very scared especially at night. Sometimes when the victim is sitting by herself and she sees people walking past her house, she gets scared and cries. Sometimes when she plays in front of her family’s house with her siblings and a man walks past, she runs back home crying. The victim is also not doing as much school work at home as she used to. It is clear that the victim must have been psychologically affected by what the accused did to her.

Aggravating features

There are several aggravating features in this case. These are: (a) the young age of the victim who is 6 years old, (b) the age difference of 30 years between the accused and the victim, (c) the psychological impact of the accused’s actions upon the victim, and (d) the breach by the accused of the trust of the victim’s family in him. All of these aggravating features are set out in the sentencing memorandum by counsel for the prosecution.

Mitigating features

I give very little weight to the accused’s delayed plea of guilty which was only entered after the trial had started. The fact that the accused is a first offender is a factor I will take into account in his favour. Both these mitigating features are also set in the sentencing memorandum of counsel for the prosecution.

The decision

In determining the appropriate sentence in this case, I take into account as a relevant consideration the sentences passed in previous cases of indecent assault as set out by counsel for the prosecution in her sentencing memorandum. I also take into account the need for general deterrence in this type of case especially when considering the high incidence of this type of offending. I also take into account the aggravating and mitigating circumstances to which I have already referred as well as the maximum penalty of 7 years imprisonment provided for this offence.

In all the circumstances the accused is sentenced to 1 year and 10 months imprisonment.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution