Police v Taugofie [2008] WSSC 100 (28 November 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

MINO TAUGOFIE
male of Vaisala, Savaii and Lelata
Accused

Counsel: T Faumuina-Tuuga for prosecution
S K Ainuu for accused

Sentence: 28 November 2008

SENTENCE

The charge

[1] The accused appears for sentence on the charge of indecent assault of a girl under the age of 12 years which carries the maximum penalty of 7 years imprisonment.

[2] When the charge was called for mention on 28 April 2008, the accused pleaded not guilty to the charge. The matter was then adjourned for hearing to the week commencing 20 October 2008. However, at the call-over on 16 October 2008, counsel for the accused indicated there will be a change of plea to guilty. So when the matter was called on 20 October, the accused vacated his not guilty plea to the charge and entered a plea of guilty.

The offending

[3] At the time of this offence, the accused, a 46 year old married man of Lelata and Vaisala, Savaii, was employed as a caretaker at the Leifiifi School compound.

[4] The victim is a female student at the same school. She was 9 years old at the time of this offence.

[5] After school on Wednesday afternoon 12 March 2008, while the victim was waiting for the school bus, she suddenly felt a stomach ache and went to use the toilet within the school compound.

[6] While the victim was seated inside the toilet, the accused tried to open the door. The victim stood up and called out that the cubicle was occupied. However, that did not stop the accused. He continued to force his way into the cubicle. So the victim yelled at the accused. She stood up and tried to close the door but she could not overcome the accused’s strength.

[7] While the victim was still standing with her undergarment mid-way down her knees, the accused managed to forcibly enter the cubicle, pulled the victim’s skirt up and touched her vagina. The victim yelled and cried for the accused to leave and to stop what he was doing. However, the accused threatened the victim and continued prodding the victim’s vagina.

[8] After the incident, the accused came out of the cubicle and called for someone to help the victim.

The accused

[9] As already mentioned, the accused is 46 years old and at the material time was a caretaker at the school attended by the victim.

[10] According to the pre-sentence report, the accused who had a low level of education had lived all his life at Vaisala, Savaii, until two years ago when he met his present wife with whom he is now living at Lelata in Apia.

[11] The accused is a first offender.

The victim

[12] The victim is now 10 years old and is still attending the same school. She has been psychologically affected by what the accused did to her. She must have been under great fear and shock at the time the accused committed this offence upon her.

[13] According to the victim impact assessment report, the victim did not attend school for one week following this incident as her family tried to build up her confidence to return to school.

[14] The victim who was very outgoing prior to this incident has become very quite and reserved. She has also suffered nightmares. She is also embarrassed of her school peers who have known about this incident.

[15] Since this incident, the victim has avoided the company of males including her own younger brother. She now prefers only the company of her female friends. Her mother says that the victim keeps asking "why did this happen to me, why me?" The victim also feels she is "dirty" and is "no longer clean".

[16] It is clear from the victim impact assessment report that the victim has been affected psychologically and the memory of what the accused did to her is likely to remain with her for a long time if not for the rest of her life.

Aggravating features

[17] The aggravating features in this case are the young age of the victim, the age difference of 36 years between the accused and the victim, the fear, shock and discomfort the victim must have suffered at the time the offence was committed and psychological impact of the offending upon the victim.

[18] The accused’s actions were also deliberate, determined and persistent. He forcibly opened the door of the toilet the victim was in despite calls and yelling from the victim that the toilet was occupied. The victim also cried and told the accused to stop but the accused threatened her and persisted in what he was doing.

Mitigating features

[19] The mitigating features in this case are the accused’s plea of guilty to the charge and the fact that he is a first offender. Having regard to the delay in entering a guilty plea, I will allow only a 15% discount on this basis.

The decision

[20] The prosecution has asked for a sentence of not less than 2 years imprisonment. Having regard to the circumstances relating to the offending, I take 3½ years as starting point for sentence.

[21] I will deduct 15% for the delayed guilty plea. That leaves 3 years. I will deduct another 6 months for the fact that the accused is a first offender. That leaves 2 years and 6 months.

[22] The accused is sentenced to 2 years and 6 months imprisonment. Any time he spent in custody pending the hearing of this matter is to be deducted from that sentence.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia, for prosecution
Meredith & Ainuu Law Firm for accused