Police v Schwenie [2009] WSSC 67 (3 July 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

MAELI SCHWENIE
male of Siusega.
Accused

Counsel: R Titi for prosecution
R Papali’i for accused

Sentence: 3 July 2009

SENTENCE BY SAPOLU CJ

1. The accused stood trial on two charges, one of attempted rape and one of indecent assault of a girl under the age of 12 years. The charge of attempted rape was dismissed and the accused was found guilty of the charge of indecent assault. He now appears for sentence on the charge of indecent assault.
   

The offending

2. The accused is a 52 year old male. The victim is an 8 year old girl. The accused and the victim’s father are cousins. They live on the same land which belongs to their family but in different houses.
   
3. On the afternoon of 19 November 2008, the victim and her younger brother were playing near the accused’s house as they often do. The victim’s brother then asked the accused for some tea to drink. The accused gave cups of tea to the victim and her brother. After they drank their tea, the accused told the victim’s brother to go.
   
4. After the victim’s brother left, the accused and the victim sat on the accused’s bed. The accused then made the victim lie on the bed. He then removed his lavalava and put his penis to the victim’s bum.
   
5. Shortly afterwards, the victim’s aunt arrived at the accused’s house to look for coconuts. She called out the accused’s name but no one answered. She looked through the door to see if someone was inside the house. She saw the accused putting on his lavalava while the victim was lying on the bed.
   
6. She called the victim’s name. When the victim came out, she beat her up. The matter was then reported to the police the same day.
   

The victim

7. The victim, as already mentioned, is 8 years old. Her father and the accused are cousins. They live on the same land in nearby houses.
   
8. There is no victim impact assessment report but what the accused did must have had some psychological impact on the victim.
   

The accused

9. The accused is a 52 year old male. He is single. He does not have a regular job but he earns money from doing landscaping for nearby families and selling fruits and vegetables from his vegetable garden.
   
10. The accused also has numerous previous convictions for various types of offences. One of these was for indecent assault in 1995. His last previous conviction was in 1998.
    
11. The pre-sentence report also shows that the accused showed no remorse to the probation service for his present offence. The probation service also reports that the accused is a great risk to the community.
    

Aggravating factors relating to the offending

12. There are several aggravating factors in this case. These are the young age of the victim, the age difference of 44 years between the victim and the accused, the fact that the victim and the accused are closely related, and the psychological impact this offending must have had on the victim.
    

Mitigating factor relating to the offending

13. The only factor which may be described as "mitigating" in this case is that the degree of criminality involved in the offending is towards the low end of the scale. Much worse cases of indecent assault have come before this Court in the past.
    

The decision

14. The accused has a very bad record for previous offences. But the Court must be on guard against imposing too high a custodial sentence in this case which may be tantamount to punishing the accused again for the same offences for which he has already been punished. That would be a wrong approach.
    
15. The degree of criminality involved in this offending is towards the low end of the scale. However, the previous convictions in this case clearly show that the accused has a dangerous propensity towards committing crime and an attitude of continuing disobedience of the law. That is relevant for sentencing purposes as it shows the need for a deterrent sentence.
    
16. Having regard to the aggravating and mitigating factors relating to the offending and to the accused, I impose a sentence of 11 months imprisonment. The total period that the accused has spent in custody from 21 November 2008 to now is to be deducted from that sentence.
    

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia, for prosecution