Police v Amituanai [2010] WSSC 110 (21 June 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

TUI MULIAGA SAVALI AMITUANAI
male of Salailua and Vaisala Savaii.
Defendant

Counsels: Ms F. Vaai and Ms T. Nelson for prosecution
Mr A. Roma for the defendant

Sentence: 21 June 2010

SENTENCE OF NELSON J.

The defendant faces one charge of indecent assault. He is 32 years old and is charged with indecently assaulting a 9 year old girl. A name suppression order will be made to permanently suppress the name and other identifying details in relation to the victim in this matter.

The summary of facts which the defendant accepts states as follows: On Friday 17th July 2009 at around 1am in the morning while the victim was asleep with her siblings in their house, the defendant who was intoxicated entered the house and approached the victims bed. He lay beside the victim and opened her shorts and inserted his finger into her vagina. This caused the victim pain and caused her to wake up. She sat up and saw the defendant. She got out of the bed and walked to rouse her brother who was sleeping nearby. The victims aunty who was also sleeping nearby heard the victim and sat up and she too saw the defendant. She saw him get up from where the victim was sleeping and follow the victim. She called out to the defendant and the second time he replied. Then he fled the house but left behind his shirt where the victim had been sleeping. The aunty questioned the victim as to what has happened and she told her what had occurred. The matter was reported to the Tuasivi Police and as a result of all this the defendant had pleaded guilty to one count of indecently assaulting the 9 year old girl.

In mitigation for the defendant his counsel has pointed to intoxication and submits that while this is no excuse it is an explanation for the defendants conduct. With respect I differ with counsel. No amount of explaining can in my respectful view address why a mature 32 year old even a very drunk one would wish to sexually assault a 9 year old girl but I do accept what counsel has submitted that the offending in this case does not appear premeditated. It seems to be offending of opportunity and not offending of a home invasion type or what we in this country call "moetolo". The defendant is fortunate that is the view the court takes of the facts of this matter because if it were the latter kind of offence the penalty would be quite different. I come to that conclusion because from what I have read it seems that the defendant was a male friend of the victims care giver who had admitted to being in a relationship with the defendant and I accept that he came to her home late at night, drunk and probably overly amorous and touched the wrong female.

Indecent assault carries a 7 year maximum penalty. And almost invariably where young girls are involved in the offending, sentences of imprisonment are imposed by the court in order to bring home to defendants and any who may be thinking of sexually assaulting young girls, that it is a serious offence that has become endemic in our community and if you do it you will go to jail for it. And you can go to jail for up to 7 years which is the maximum parliament has set for this offence. The real question that I have to determine for your matter Tui is considering the circumstances, how long is an appropriate term for your offending.

Looking at the nature of the actions carried out by the defendant which involved digital penetration of a 9 year old girls vagina, taking into account the factors in the defendants favour such as his early guilty plea, he is a first offender and the opportunistic nature of the offending, having regard to also the facts that were raised by your counsel as well as those contained in the pre-sentence report of the Probation Office, the defendant will be convicted and sentenced to 12 months imprisonment.

JUSTICE NELSON