Police v Samoa [2008] WSSC 11 (11 March 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

SOLA INIFI SAMOA
male of Toamua.
Accused

Editor's note: Sentence by Sapolu CJ

Counsel: L M Sua-Mailo for prosecution
Accused in person

Sentence: 11 March 2008

SENTENCE

The charge

[1] The accused appears for sentence on one charge of indecent assault which carries a maximum penalty of seven years imprisonment. He pleaded guilty to the charge at the earliest opportunity.

[2] However, when the summary of facts was translated into Samoan to the accused, he denied a material part of it. That is where it states that the accused threatened to stab the victim with a breadknife.

[3] In consequence, the prosecution had to call the victim and the police investigating officer who had obtained a statement from the accused to give evidence in support of the disputed part of the summary of facts. The accused, although given the opportunity, did not cross-examine any of the prosecution witnesses. When he was given he opportunity to give or call evidence to support his denial of the disputed part of the summary of facts, he did neither.

The offending

[4] On Friday night 23 November 2007 at around 10pm, the accused went to the house of the victim’s family looking for food. The victim’s mother instructed the victim to give him bread and she did. However, the accused asked for something else so the victim’s mother chased him away.

[5] On early Saturday morning 24 November 2007 at around 6am, the victim’s mother went to the neighbour’s house to borrow their crowbar.

[6] At that time, the accused entered the room in which the victim and her baby sister were sleeping in. The accused then pulled down the victim’s panties and started to lick and suck her vagina. This aroused the victim from her sleep. However, when she tried to scream, the accused covered her mouth with his hand and threatened to stab her with a breadknife.

[7] The victim sobbed but the accused continued with what he was doing until the victim’s mother walked into the house. The accused then fled.

The accused

[8] The accused is a 38 year old male living with his older brother at Tanumapua at the time of this offence. As it appears from the pre-sentence report, the accused before living with his older brother was leading a transient way of life living from place to place.

[9] The accused is now single having separated with a former partner. He is also unemployed.

[10] The accused has two previous convictions, one for causing actual bodily harm in 1988 and one for throwing stones in 1993. . The pre-sentence report also shows that the accused has not been previously a person of good character.

[11] In relation to the victim, it appears from the summary of facts that the accused and the victim are first cousins, the victim being the daughter of the brother of the accused’s mother.

The victim

[12] The victim is an 11 year old female. She attends school. She and the accused are first cousins.

[13] Even though the victim did not suffer any physical injuries, it appears from the victim impact report that this incident has affected her psychologically. She feels bad when she remembers what the accused did to her, she feels angry towards the accused and is now scared of him; she has become indifferent to the boys in her class at school and has distanced herself from them, she no longer plays with her friends from her neighbourhood and restricts herself to playing with her young sibling inside her family’s house; and when she visits her aunty at Ululoloa she would always follow her around as she is now scared to be alone.

Aggravating features

[14] There are several aggravating features in this case. Apart from the criminality of the indecent acts committed by the accused, those acts were accompanied by force and a threat of violence. When the victim tried to scream, the accused covered her mouth with his hand and threatened to stab her with a breadknife. Even though the victim sobbed, the accused continued with his indecent acts. This offending also involved an element of home invasion as it occurred inside the victim’s bedroom.

[15] There is also an element of breach of trust. The accused and the victim are first cousins. The young age of the victim and the age difference of 27 years between the accused and the victim are other aggravating feature.

[16] The psychological impact of the offending upon the victim as set out in the victim impact report is another relevant aggravating feature.

Mitigating features

[17] The only mitigating feature in this case is the accused’s plea of guilty at the earliest opportunity. In consequence of the denial by the accused of that part of the summary of facts which states that he threatened to stab the victim with a breadknife, the victim and the police investigating officer had to be called by the prosecution to give evidence. I will give the accused only a 25% discount for his guilty plea.

[18] Even though the accused is a first sexual offender, it appears from the pre-sentence report that he has not been previously a person of good character in terms of sexual misconduct.

The decision

[19] Having regard to the aggravating and mitigating features of the offending, I will take 3 years as the starting point for sentence. Turning to the accused’s personal circumstances, I will deduct 25% for his guilty plea. That leaves 2 years and 3 months.

[20] The accused is convicted and sentenced to 2 years and 3 months imprisonment. The period of 3 months and 4 days during which the accused has been in custody on remand since 7 December 2007 is to be deducted from that sentence.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution