Police v FS [2009] WSSC 99 (28 September 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

"FS"
male of Solosolo.
Defendant

Counsels: Mrs L. Su’a-Mailo & Mr M. Lemisio for the defendant
Mr S. Leung Wai for the defendant

Sentence: 28 September 2009

SENTENCE

The defendant appears for sentence on one count of indecently assaulting his then 12 year old step-daughter and also one count of causing her actual bodily harm. I would remind the press that there is currently in force a suppression order in respect of the names and identities of both the defendant and the victim in this matter in order to protect the identity of the young girl involved. Case reports to be amended to read Police v "FS".

In relation to the indecent assault the summary of facts discloses that this occurred on a night between 31 July 2008 and 1 September 2008 when the defendant fondled the complainants vagina and breasts with his hands while she was asleep in their samoan fale and while her mother was in the bathroom. These actions caused the victim to awake and call out to her mother to whom she said that the defendant was doing actions to her again. The victims statement to the police relates that this is not the first time the defendant has done these sorts of things to her.

The second charge of actual bodily harm arises out of an assault by the defendant on the victim on the night of 21 August 2008. On that night the defendant asked the victim to go and prepare his work clothes and also asked the victim for a goodnight kiss. The victim refused so the defendant slapped her on the face. Slapped her hard enough to cause swelling and bruising to her left eye which her school teacher noticed the next day and reported to the police.

The defendant is a 32 year old male and he lives with the victims mother and has lived so for about three years prior to these incidents. The couple have no children but the defendant is supporting the victim and four other children from a previous relationship of the mother. The defendant is the sole breadwinner for the family and he told the Probation Office that he was drunk on home brew the night that he committed the indecent assault on his step-daughter. As a result of this matter he has been penalised heavily by the village council and has rendered an apology to them as well as to the family of the victim.

Perhaps because of the heavy penalty imposed by the village council the probation office has recommended to the court a non-custodial penalty for this defendant and the office is recommending community service and community hours. I find this surprising because the courts attitude to offending by older men on young females of a family is normally to impose terms of imprisonment unless there are exceptional reasons why a non-custodial penalty should apply. The basis for this approach is outlined in cases such as Police v Faiga [2008] WSSC 96 which refers to Samoas obligations under the United Nation Convention on the Rights of the Child to which this country is a party and also because of the increasing prevalence of sexual molestations of young girls by older men in our community. In cases such as this by care givers who are charged with the duty to nuture and protect them not abuse them sexually. The aim of imprisonment sentences is to deter other like-minded males who may be tempted to give in to their lustful urges and to convey society’s intolerance of such offending.

The aggravating factors in this case includes the breach of trust by the defendant as the victims step-father, the young age of the victim who at the time of the offence was only 12 years old and the mature age of the defendant who is 20 years her senior. Premeditation has been advanced by the prosecution in their submission as a factor but I accept what defence counsel argues that this is not an offence of premeditation, this is an offence of opportunity. However I do not accept this offender is at the lower end of the scale such as the case of Police v Schwnie [2009] WSSC 67 cited by the defendants counsel. In that case the defendant and the victims father were cousins making the victim a niece of the defendant. Here the defendant is the victims father. And when the Chief Justice talked in Schwnie of the criminality being at the lower end of the scale he meant it in the context only of what the defendant did and the defendants actions rather than in any wider or more general sense.

The offence of indecent assault carries a maximum penalty of seven (7) years imprisonment. From a perspective of degree of criminality an appropriate start point is considered to be 4 years. I deduct from that certain factors in the defendants favour as advanced by his counsel. Firstly his guilty plea which has saved the courts time and resources, saves the victim having to relive the trauma of what happened and is an expression of the defendants true remorse. For that guilty plea I deduct one-third of the penalty reducing it to a period of 32 months. In the defendants favour is also the heavy penalty and fine by the village council which the law requires to be taken into account. For that I deduct 6 months leaving a balance of 26 months. For the residual mitigating factors in the defendants favour as outlined by his counsel and in the pre-sentence report of the Probation Office I deduct a further 6 months, that leaves a balance of 20 months.

On the charge of indecent assault you are convicted and sentenced to 20 months imprisonment. The second charge you face is actual bodily harm which carries a maximum penalty of 2 years imprisonment. Considering the defendants actions in respect of that matter there is little in his favour except the fact that he has no previous record and that he has apologised for his conduct. In respect of that charge the defendant will be convicted and sentenced to 4 months imprisonment. As that is separate to the indecent assault offending that sentence will be cumulative, which means he will serve a total of 2 years in prison for these matters.

JUSTICE NELSON