Police v Oto [2009] WSSC 53 (8 May 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

LEALOFI OTO male of Saanapu and Vailuutai
Accused

Counsels: Ms L. Taimalelagi for the prosecution
Mr P.Fepuleai for the accused

Sentence: 8 May 2009

SENTENCE

The defendant appears for sentence on a charge of indecent assault on the complainant a girl over the age of 16 years. The charge is brought pursuant to section 54(a) of the Crimes Ordinance 1961. The defendant was found guilty of the charge by a panel of assessors and the circumstances leading up to that verdict have been covered by the courts decision dated 27 March 2009. I concurred with the assessors' verdict and that written decision also contained my conclusions that the indecent assault by the defendant consisted of unwanted touching of the complainant's breasts and upper legs and digital penetration of her private part. The maximum penalty for the charge is five (5) years imprisonment.

The prosecution in their written submission are seeking an imprisonment penalty of somewhere between nine (9) months and two (2) years based on previous decisions of this court. They have cited a number of those decisions but as counsel for the defendant has correctly pointed out those cases involve complainants under 16 years of age and involved charges brought not under section 54(a) but other sections of the Crimes Ordinance. Because those other charges involved girls under 16 years of age the maximum penalty is higher, seven (7) years as opposed to five (5) years. Those cases are therefore not directly analogous to the present case.

However that is not to say that they are therefore irrelevant. They are relevant insofar as they contain statements of general principle applicable to all sexual assaults on young girls and the complainant at the time of the offending in the instant case was 17 years of age. The fact that sentencing is occurring in this court and not the District Court which has jurisdiction in such matters is immaterial as that court would be expected to follow the same sentencing principles.

Those statements of general principle I have already referred to in the sentencing matter just completed and they relate to the United Nations Convention on the Rights of the Child ("CRC") to which this country is a party. And the necessity to impose sentences of imprisonment in order to meet the swelling tide of sexual offending by older men on young girls that seems to be pervading our community. As stated by the court in Police v Faiga [2008] WSSC 96:

"Another reason is the increasing prevalence of sexual offending involving young children. Terms of imprisonment have been imposed in the past and will continue to be imposed in the hope of deterring not only the particular offender involved but also others who may be like minded to give in to such lustful urges."

The factors aggravating the defendants offending are correctly summarized in the prosecution written submissions. The breach of the trust because the complainant was living under the care of the defendant who was at that time the EFKS pastor of the village; the age difference between the parties of 44 years; the fact that the complainant had to testify before a panel of assessors as to what happened and had to relive her traumatic experience; the premeditation involved in luring the complainant into a vacant bedroom late at night on the pretext of a massage; and to that I would add the violence of the offending itself as the complainants evidence was that she was pained by the defendants digital penetration of her private part which caused her to cry out so the defendant covered her mouth in an attempt to stifle her cries.

Defence counsel referred to several matters in the defendants favour. The first and obvious one is he appears at 62 years of age before a court for the first time. The testimonials attached to his pre-sentence report speak highly of his diligence and character and he has served the community of Saapanu-uta for 14 years as a faifeau. He has expressed deep remorse for what happened and has formally apologized to the complainant and to the complainants family. Apologies which according to the pre-sentence report have been accepted by the complainant and her family. He has paid a substantial fine to his village councils totalling some $12,000 in monetary terms. The defendants counsel has also referred to the defendant being punished by removal from the clergy and he supports the recommendation of the Probation Office for a sentence of supervision. He also seeks leniency for his client.

However this is not a case of an ordinary person sexually violating a young girl. This is a case of a pastor sexually assaulting one of his flock who was then living under his care and protection. There has been a gross abuse and betrayal of the trust placed in him by the complainant, the complainants family and his community. Those factors coupled with the need for the court to protect young women from these kind of assaults by older more experienced males means a sentence of imprisonment must be imposed, the real question is how long.

The maximum penalty is five (5) years. Considering the circumstances I take 3 years as the appropriate start point. As pointed out by defence counsel the defendant is entitled to certain deductions to be made for the factors in his favour.

For the substantial village fines that have been paid which the court is mandated by law to take into account, I deduct 12 months. For the fact that you are a first offender and for your previous good record I deduct 6 months. For all the other mitigating factors raised by your lawyer and in the pre-sentence report of the Probation Office, I deduct a further 6 months. That leaves a balance of 12 months. You are convicted and sentenced to 12 months imprisonment.

JUSTICE NELSON