Police v Aloese [2007] WSSC 54 (20 July 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

LEALA ALOESE
male of Taga
Accused

Counsel: L M Su'a for prosecution
A Roma for accused

Sentence: 20 July 2007

SENTENCE

The charge

The accused is charged under s.53 of the Crimes Ordinance 1961 with one count of having sexual with a girl over the age of 12 years and under the age of 16 years which carries a maximum penalty of seven years imprisonment. To this charge the accused pleaded guilty at the earliest opportunity.

The offending

As it appears from the summary of facts and the pre-sentence report, the accused who is 27 years old, works as a bricklayer in Apia. On every other weekend, he went to his family in Taga, Savaii, and spent the weekend with his family. In April this year, he went to Savaii again and spent the Easter holiday with his family. At that time, the victim who is 15 years of age was staying at the family of the accused. The victim is a daughter of a cousin of the accused.

According to the pre-sentence report, the victim had been sexually abused by her cousin she had been staying with. Because of that, the family of the accused took her in to live with them. When the accused visited his family in Savaii for the Easter holiday the victim was staying there.

According to what the accused told the probation service, on the night of 12 April, he and the victim planned that the accused would be sneaking over later that night to where the victim would be sleeping and they would have sexual intercourse. So between 1.00am and 2.30am that night, the accused who was sleeping in another house came over to the house where the victim was sleeping, entered the mosquito net in which she was sleeping and woke her up. The accused then lay on top of her, kissed her, touched her breasts, and had sexual intercourse with her. When they finished, the accused told the victim to come with him to Apia and the victim agreed. So they came to the wharf at Salelologa at the very early hours of the morning to catch the ferry to Upolu.

The family of the accused then discovered that the victim was missing from their home and started looking for her. The sister of the accused suspected that the victim might be with the accused who had already left to catch the ferry to Upolu. She then called the accused on the phone and found him to be at the wharf at Salelologa. She told the accused not to take the victim with him. As a result, the accused abandoned the victim at the Salelologa wharf and came by himself on the ferry to Upolu. The victim then cried on the wharf and when confronted by one of the ferry's ticket collectors, she told him what had happened. The ticket collector then took the victim to the police at Tuasivi.

The accused

As earlier mentioned, the accused is a 27 year old male from Taga in Savaii but works in Apia as a bricklayer. He is single. He had a low level of education having left school at Year 8.

The pre-sentence report and the testimonials from the pulenu'u of the accused's village and the bishop of his church show the accused is a reliable, honest and trustworthy person. The accused is a first offender.

The pre-sentence report also shows that the accused and his family were fined $4,000 by the village council of Taga. In lieu of the fine, the accused and his family presented a cattle beast, two large pigs and twenty boxes of herring which was accepted by the village council.

The accused has also expressed remorse to the probation service.

The victim

As the pre-sentence report shows, the victim who is 15 years old is from a broken family. She stayed with a cousin who abused her. Because of that, she was taken in by the family of the accused who are her cousins. That was when this offence occurred when the accused visited his family for the Easter holiday.

Aggravating circumstances

Given the personal circumstances of the victim, she was in a particularly vulnerable position. The accused who is a cousin of the victim must have been aware of the vulnerability of the victim. He even tried to escape with the victim to Apia when he was told by his sister to leave the victim. The accused is also 12 years older than the victim.

Mitigating circumstances

The accused's plea of guilty to the charge at the earliest opportunity, his expressions of remorse to the probation service and through his counsel to the Court, the fact that he is a first offender and was a person of good character prior to the commission of this offence, as well as the substantial penalty he and his family have paid to the village council of Taga are all mitigating circumstances. Counsel for the accused also pointed out that the accused had co-operated with the police by making a full confession when he was questioned by the police.

The decision

In fixing the starting point for sentence in this case, I take into account the maximum penalty of seven years imprisonment for this offence, the gravity of the offence which consists of one count, and the aggravating circumstances. I also take into account in this connexion the purpose of the charging provision which is not only to protect underage girls from members of the opposite sex but also to protect them from their own immaturity.

I will take 18 months imprisonment as the starting point for sentence. I will then give the accused a 1/3 discount for his plea of guilty to the charge at the earliest opportunity. That leaves a sentence of 12 months imprisonment. I will deduct a further 5 months for the other mitigating circumstances as earlier set out. That leaves 7 months.

The accused is sentenced to 7 months imprisonment.

CHIEF JUSTICE

Solicitors
Attorney General's Office, Apia for prosecution
Ameperosa Law Firm