Police v Leiataua [2009] WSSC 71 (8 June 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

PETELI ALAVINE LEIATAUA, male of Fagasa Sataua and Aleisa.
Defendant

Counsels: Ms L. Taimalelagi for the prosecution
Mr T. Patea for the defendant

Sentence: 8 June 2009

SENTENCE

The defendant appears for sentence on one count of attempting to have sexual intercourse with a girl under 12 years of age contrary to section 51(2) of the Crimes Ordinance 1961. This offence carries a maximum penalty of 7 years in prison. The defendant at the time was 37 years of age and was living at the complainant's family at Aleisa. He is the brother-in-law of the complainant's aunty. The complainant at that time was 6 years of age.

The summary of facts relates that the offending occurred at 1pm in the afternoon of 2 May 2008. The complainant was at home by herself with the defendant. The defendant took her into one of the bedrooms put her onto a bed and undressed her. He spit onto the complainant's vagina and sucked it then according to the summary of facts showed her his penis and used his finger to prod her vagina before rubbing it up against her vagina. No penetration was achieved but the complainant told the defendant to stop what he was doing. The defendant did not and continued with his actions until he ejaculated and he told the complainant not to tell anyone what had happened. But later when the complainant's older siblings bathed her they noticed a discharge of blood and fluid on her panties and in her vaginal area. They questioned the complainant but she did not tell them what had happened. She only told her mother about it when the mother questioned her the following week. The matter was then reported by the mother to the police.

The defendant admits his actions but says through his counsel that he was asleep on the day in question in the house at the rear of the family property. He says the complainant entered the room where he was sleeping and hopped onto him. This "physical connection" led him to being aroused into doing what he did to the little girl. As far as this aspect of the matter is concerned, it matters little for the defendant admits to his indecent actions on the complainant and he has pleaded guilty to attempting to have sex with the girl. To try and pin the blame for this incident on a 6 year old girl jumping on top of him does not assist his case and it is certainly far from normal if a 6 year old jumping on to a man causes him to be sexually aroused. Furthermore the defendant is 30 years senior to the little girl and should be able to control any unnecessary feelings he may have felt.

Prosecution are rightly seeking an imprisonment penalty but the cases they cite in their written submission are not very helpful because as counsel for the defendant points out they are all cases involving sexual intercourse on young complainants whereas here it was only an attempt. The actions in this case are more of an indecent assault on a young complainant. But the submission rightly refers to the guiding sentencing principles such as Police v Faiga [2008] WSSC 96 and Police v Avia [2007] WSSC 37 which discusses the United Nations Convention on the Rights of a Child to which this country is a party and the rising tide of sexual offending involving older mature men on young girls. What has not been covered by counsels submissions are the penalties imposed in cases such as Faiga itself which was an indecent assault on an 8 year old girl by a 31 year old man, result 3 years imprisonment. Also Police v Taugofie 28 November 2008, an indecent assault on a 9 year old by a 46 year old married man, result 2½ years imprisonment; Police v Telea 20 February 2009, an indecent assault by a 57 year old on a 5 year old, result 3 years imprisonment; Police v "F", 30 March 2009, indecent assault by a 33 year old father on his 8½ year old daughter result 4 years imprisonment; Police v "X" 27 April 2009, indecent assault by a 61 year old on a 12 year old step-daughter result 4 years imprisonment. It is clear from these sorts of cases the seriousness with which the court regards this type of offending.

The aggravating factors of this case are well noted in the prosecutions submission. They are the young age of the victim, the age difference between the parties, the grossness of the acts by the defendant, the fact that the defendant took advantage of the aloneness of the complainant since no one of the family was then at home, the pain these acts caused the complainant to complain of vaginal pain to her siblings and her mother even one week post incident, and finally the prevalence of this kind of offending in our community. To this I would add the further factor identified in defence counsels submissions of the breach of trust involved in a young girl being sexually assaulted by an older member of the extended family. An older member who had been taken in by the family in the beginning of 2008 and treated by the family as one of their own.

In the defendants favour are mitigating factors as follows: his guilty plea at the earliest opportunity, the fact that this is an isolated incident, the fact that the offending is out of character as evidenced by the testimonials in the defendants favour attached to the probation office report, the fact that he is a first offender, the reconciliation and apology as noted in the pre-sentence report. I accept all of these as referred to by counsel for the defendant.

The one aspect I do not accept is the suggestion that there has been no or minimal psychological impact of the offending on the young complainant. This is based on what is in the victim impact report which refers to the complainant as being happy at school and in her life generally. The reason I reject this is firstly the impact report itself speaks of the physical cost to the complainant on page 2 at the top and because there is no doubt in my mind such an experience on a 6 year old would leave a mark psychologically. It may not be apparent in the immediate future but many studies show that it will manifest itself in one way or another as the young child grows into maturity. They show that innocence lost in such circumstances always leaves trauma of one form or another.

The maximum penalty for this offence prescribed by law is 7 years. Considering the child's tender age and the aggravating factors 5 years is an appropriate starting point. I deduct from that 18 months for your guilty plea which is the largest factor in your favour. For the other factors in your favour referred to in the pre-sentence report and by your counsel I deduct a further 12 months. It leaves a balance of 30 months. For the offence you have committed on this 6 year old I convict and sentence you to 2½ years imprisonment.

JUSTICE NELSON