Police v S AN [2009] WSSC 56 (8 May 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

"S AN"
Defendant

Counsels: Ms L. Taimalelagi for the prosecution
Mr R. Faaiauaso for the defendant

Sentence: 8 May 2009

SENTENCE

The press is reminded of the suppression order already made by the court in relation to the victim, the witnesses and also the defendant in this matter. Case to be reported as Police v "S AN".

There are three charges facing the defendant, two counts alleging that on 14 June 2008 he did indecently assault his then 10 year old granddaughter, and one count that on 22 June 2008 he did the same thing. The charges are brought under section 52(1)(a) of the Crimes Ordinance 1961 and each charge carries a maximum penalty of seven (7) years imprisonment. The defendant initially pleaded not guilty to all charges and accordingly the matter proceeded to trial.

The complainant is the defendants 10 years granddaughter and at the time was living with her grandparents and attending a nearby school in the village. Her mother was living in another village some distance away. The complainants evidence was that on or about 14 June 2008 she travelled inland with her grandfather to the family plantation. She sat in the front seat of their pick up which the defendant was driving. There were only the two of them in the vehicle. On the way to the plantation the defendant indecently assaulted her by touching her private part. She also testified that when they arrived at the plantation, they went into their house where the defendant again indecently assaulted her by touching her private parts. They were alone at the plantation house as her other siblings were in the plantation f collecting coconuts. She said that both occasions involved the defendant inserting his fingers into her private parts. Her grandfather told her not to tell anyone about the incidents but later that week she rang her mother to tell her what had happened. However the phone cut out and the call was not completed.

The third and final incident of indecent assault occurred the following week-end on Sunday 22 June 2008. Everyone had gone to church except for a female in-law and the defendant had asked her to massage his legs. This incident also involved the defendant fondling her private parts and involved him telling her off for contacting her mother and him reminding her he was suffering in paying for her schooling expenses.

The evidence was that she told the female in-law about the incident and subsequently the defendant was confronted by the family but he strongly denied any wrong doing. The following day the Monday 23 June her mother came and fetched her from school and reported the matter to the police. The matter has since been settled and the evidence of the complainants mother was she wanted to withdraw her complaint but the police quite rightly refused to do so.

At the close of the prosecution case counsel for the defendant applied to change the defendants plea from not guilty to guilty to all charges. I indicated to counsel that probably would not do his client any good since the damage to some extent had been done to his clients interests as the 10 year old complainant had already given evidence but I granted the application anyway.

It is now a question of imposing sentence on the defendant for his actions. In calling for a jail term the prosecution have referred to the United Nations Convention on the Rights of the Child to which Samoa is a signatory and they have quoted what this court said in Police v Faiga [2008] WSSC 1996 also a case of sexual assault on a girl under 12 years of age:

"This is a clear mandate to the courts of this country to have regard to the provisions of the Convention in appropriate cases. The list of appropriate cases undoubtedly includes cases involving the sexual abuse of children. A child has the inalienable right to be protected from such behaviour. More than lip service must be paid to the provisions of the Convention. This is one of the reasons why the courts view offending against young and vulnerable children as serious and deserving of stern sentences."

The prosecution have also cited other decisions of this court which imposed imprisonment sentences for this sort of offending in an effort by the court to curb what is a disturbing increase in this type of offending. As well the written submission of the prosecution refers to the aggravating factors of the offending namely the breach of the trust by the defendant in sexually assaulting his own granddaughter whom he is duty bound to nurture and cherish especially when she was at the time living under his care and protection and attending school; the young age of the complainant; and the almost 60 year age difference between the defendant who is 69 and the complainant who at the time was 10. The prosecution also referred to the fact that the offence occurred not once but three times although this by itself is probably not a significant fact as each charge is dealt with and sentenced separately by the court. They did rightly however refer to the complainant having to relive the incidents by coming to court and testifying about them as well as the consequences of the offending which are noted in the victim impact report as follows:

"that since the incident the victim is now so ashamed of her cousins because they have heard about what happened and they usually mock her about it and embarrass her and more disturbing is the part of the report under psychological trauma which says that according to the mother of the victim, the victim has become cheeky or naughty since the incident. The victim was never like that before the incident. Furthermore according to the mother she has become rebellious and does not listen to her."

Prosecutions submission also refers to the pre-meditation allegedly involved but the evidence of that is not strong. This seems to me more a case of the defendant taking advantage of the alone opportunities with the complainant rather than him deliberately setting events in motion which would have the effect of creating such opportunities. There is also reference in their submission to an element of incest but that is not what the defendant has been charged with neither is there evidence that there was any intercourse between the parties. What the prosecution is getting at is probably covered by the breach of the trust element of the offending. One factor that is present and was referred to by counsel for the prosecution at the last calling of this matter is the apparent lack of remorse by the defendant who told the Probation Office he only pleaded guilty on his counsels advice and that the complainants mother has exaggerated this whole thing.

I have seen and heard the complainant. There is no doubt in my mind she told the court the truth and what she told her mother is consistent with her evidence in court. I reject what the defendant told the probation office and in any event he has pleaded guilty to the charges. Charges which I am sure were thoroughly explained to him by his counsel who is a senior and experienced member of the Bar.

In mitigation defence counsel seeks firstly that I give credit to the defendant for his late guilty plea. I am unable to do that. The primary significance of a guilty plea in a sexual case is its avoidance of a complainant having to appear in court before a room full of strangers and testify about what was obviously an unpleasant experience to put it mildly. The trauma of a young child having to go through that cannot be understated. A guilty plea is also accorded credit because it saves the expense and time of a full trial. It is also from one point of view the best expression of true remorse a defendant can have in admitting and acknowledging his guilt. In this case none of these factors were achieved. Defendants who plead guilty at the close of the prosecution evidence can expect no credit for their change of plea.

Counsel also referred to the defendants age and medical condition as evidenced by a medical report attached to the probation office pre-sentence report indicating the defendant suffers from hypertension, diabetes and arthritis. I also see he requires a walking stick although he was walking fine on the day of his trial.

The seriousness of the offending plus the fact that the complainant is the defendants granddaughter means a term of imprisonment must be imposed. In comparable cases terms of 2-4 years have been imposed by the court. But as defence counsel has pointed out some credit must be given to the fact that at almost 70 years of age this is the defendants first appearance before any court and the references attached to his pre-sentence report are testament to his previous good character. I also bear in mind his age and medical problems.

For these reasons I will take the lower end of the scale of the sort of sentences that have been imposed by this court. The defendant will be convicted and sentenced to two (2) years imprisonment.

JUSTICE NELSON