Police v Iele [2010] WSSC 172 (3 December 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

FONOIA MAA IELE
male of Salelologa.

Defendant

Counsels: R Titi and F Niumata for prosecution
M V Peteru for defendant

Sentence: 03 December 2010

DECISION AND SENTENCE OF NELSON J

Decision:

This defendant is charged that at Salelologa on the 9th day of April 2010 he did indecently assault the complainant in this matter a boy under the age of 16 years. In case one has not been issued, the court issues a suppression order prohibiting publication of the details of the complainant in this matter.

The complainants evidence is that at that time he lived with his aunty and her children opposite the new Salelologa market. His usual job was to assist in the selling of food at the market place in a restaurant "poloka" which the aunty operated. In the morning this would consist of selling donuts and sausages and at lunch time a heavier meal such as curry and rice. He was doing this on the day of the incident and the aunty was at home taking care of the cooking while her daughter Ioana was on duty at the "poloka". That morning the defendant and some friends were drinking in a bushy area across the road from the market not far from the driveway into the complainants auntys house.

At one stage as the complainant passed by the drinking group the defendant called to him to fetch some ice water from their house. The complainant did so and the ice water was used to mix the bottle of spirits the defendant and his group were consuming. It appears from the evidence that the defendant is friends with the auntys son and that they regularly hang out together but according to the complainant the son was not part of the drinking group that morning. The complainant said that he however knows the defendant from having seen him around the market and their "poloka".

His further evidence was on the morning in question the defendant was drunk. Complainants evidence was that after giving the defendant the ice water the defendant stopped him from going and told him that he was not finished. The defendant then gave him a red pall mall packet of cigarettes with five marijuana cigarettes inside and instructed him to go to the market and sell it but the complainant refused. Whereupon the defendant then took him to an isolated spot at the back part of where the drinking was occurring and threatened to beat him up. The spot could not be seen from where the group of boys were drinking which was at the front of the property. The complainant also testified that the defendant had a pistol tucked into his jacket and that he threatened to shoot him. And that when they went to back bushy area of the land he told him to kneel down and unzip his pants, which the complainant did because he was afraid. He said the defendant then instructed him to perform fellatio on him. And that the defendant also rubbed his penis over his face and told him to open up his own pants but he did not do so. He further testified that while he was doing all this the defendant was swaying around and at one stage he turned and urinated into the grass which gave him an opportunity to run away which he did but he was pursued by the defendant. He went to the market place and met up with Ioana who asked him what was wrong. He said he did not give her any details of what had happened but only said to her "e seu kele le fika a Maa" which is a slang for he was very unhappy at the defendants behaviour. The girl Ioana then delivered him to their house and told him to stay there and she returned to the market.

Complainants further testimony was that while he was talking with Ioana the defendant was on the opposite side of the road calling out to him that he will kill him if he talks. He indicated the distance between him and the defendant at the time to be 20 meters roughly the width of the main road that runs past the new Salelologa market. At his home his aunty asked him what was wrong but because he was ashamed he did not tell her. In cross examination the complainant denied that he was part of the defendants drinking group or that he also participated in the drinking and was in fact drunk.

The evidence of his cousin Ioana was that she was at the family "poloka" that morning waiting for the complainant to turn up with the food. She saw the complainant coming followed by the defendant. She said the complainant was trembling and looked apprehensive so she questioned him and he told her "e seu le fika a Maa" but he gave her no further details. The defendant then arrived and told the complainant to keep quiet and if he did not he will beat him up and kill him. So she took the complainant home but was followed by the defendant and as her and the complainant crossed the main road to their house the defendant again called out to the complainant to remember his words, if he talks he will beat him up and kill him. She said she deposited the complainant at their house and then returned to their "poloka" at the market still followed by the defendant. The defendant appeared drunk and had red eyes and in her view also appeared high on marijuana. She said the defendant offered a friend of hers some marijuana but her friend refused to take it. This resulted in an argument between her and the defendant ending up in the defendant punching her in the mouth. Later that day she laid an assault complaint with the police against the defendant and presumably that is also the time the matter concerning the complainant was referred to the police as the complainant made his statement to the police that day. In cross examination Ioana said that the complainant did not appear drunk neither did she actually see any marijuana cigarettes.

The other main witness for the prosecution was the complainants aunty whose evidence was that by 10:00 or 11:00 am that morning the lunch food was cooked but the complainant had still not come to deliver it. So she rang her daughter Ioana looking for the complainant. Ioana did not know where he was. Shortly afterwards the complainant arrived at the house looking scared and when she instructed him to take the food to the market "poloka" he refused saying that he was scared of the defendant. So the aunty delivered the lunch food to the market and on her return, questioned the complainant. She said all that the complainant told her was the defendant had threatened him but no further details were given to her. In cross examination the aunty said that her son who is good friend of the defendant was not at home that morning but she was not aware of his whereabouts. She also said she did not know the time when the complainant came and took the ice water as the fridge is located some distance from the kitchen. The kitchen is probably an outdoor kitchen which is usually located in a separate fale. The aunty also denied that the complainant was drunk or was swaying.

In answer to all this the defendant elected to testify. He said that the drinking group which comprised the aunties son and two others had pooled their money together and gave it to the complainant to purchase for them a bottle of spirits. They chose the complainant because they owed the store keeper some money. The courts inspection of the scene and the market place however revealed that there are numerous stores located at the market and there is not only one store that sells alcohol. The defendant said that the complainant left with their money and returned with a bottle of spirits. He then instructed the complainant to fetch some ice water which the complainant did and they used this to mix their drinks. The defendant also testified that the complainant was part of the drinking group but he said not to give him too much to drink as he is a rookie drinker. He said they drank all morning and the complainant was sent again to his house to fetch more ice water which he did. And at one stage a girl came to fetch the complainant who by that time was quite drunk. But the complainant ran off and he did not see him again that day. The defendant did not identify this girl but if it was Ioana it is strange that he would not know her, she being the sister of one of his best friends. The defendant did however admit that there was a later incident involving his assaulting Ioana.

In his evidence he denied being in possession of a pistol or any marijuana cigarettes and also denied every aspect of the complainants indecent assault allegations. He said that as a man with children he could never do anything like this to a young boy. For the defendants information many sexual predators who come before this court also have children. He also testified that the complainant was making false allegation in order to cover up his drinking and getting drunk at their drinking party an explanation which in my view was quite unconvincing.

In reviewing his evidence I note there were many parts thereof that were not put to prosecution witnesses in cross examination. He was represented by senior and very experienced counsel and this probably means his counsel had received no instruction on these matters. He prevaricated during much of his evidence and contradicted himself in cross examination when he said the aunties son only came to the drinking party when the complainant brought the ice water; yet in examination in chief he had said the son was part of their group and like everyone else contributed to the cost of the bottle of spirits. It is unlikely that anyone who contributes to the cost of a bottle of spirits would then leave the drinking party leaving the bottle of spirits to be consumed by his drinking mates. The defendant was also unable to produce any member of the drinking group whom he said are all Salelologa boys to testify in support of him.

The defendant did not impress me with his overall demeanor or credibility when he gave his sworn evidence. I do not believe him. I prefer the evidence of the complainant his cousin and his aunty because they are consistent with each other and their testimony has a ring of truth. The evidence of the prosecution witnesses is sufficient to sustain the charge beyond reasonable doubt and as there was no dispute as to the age of the complainant the charge is accordingly proven in all respects. It now remains a matter for sentence of the defendant.

Sentence:

I am ready to deal with that matter now counsel if you are ready to submit a plea in mitigation. There was a report prepared for the purposes of the other offence that the defendant pleaded guilty to and I have read that report. So are you ready to be heard in mitigation? (Counsel indicated she was and went on to make her plea in mitigation.)

Fono you appear for sentence on the charge of robbery that you pleaded guilty to and on the charge of indecent assault that I have just found you guilty of. I will deal firstly with the indecent assault because that is the more serious of the two offences. For your information that carries a seven year maximum penalty. This is a case that involves a sexual assault by a drunken defendant on a 14 year old boy. Which obviously upset the young boy but in the absence of the victim impact report as there is non on file it is hard to say what if any long term impact this offending has had on the complainant. There is not much that can be said in your favour Fono your lawyer has said all she can say on your behalf. You are not a first offender because you have a conviction earlier this year for assault. You also have an earlier conviction in 1980 for the same offence but that is an ancient conviction and I disregard it. You did not plead guilty and because this matter went to trial therefore you cannot receive the benefit of any guilty plea. No apology or reconciliation has been effected according to what is before the court. You should know Fono this is a serious offence the normal penalty for which is imprisonment because it involves a sexual offending by an older male on a young child. Usually the young child is a girl but in this case it is a male. But the same considerations for the purposes of sentencing as to protection of children apply.

Considering all the factors and the nature of the assault which was accompanied by threats I consider an eighteen month term is appropriate for your sentence. You will be convicted and sentenced to 18 months imprisonment for the offence of indecent assault but your remand in custody time is to be deducted from that sentence. Your petition to have this time served in Savaii has got nothing to do with the court you need to make that petition to the police as the prison authority.

In respect of the second offence of robbery which you pleaded guilty to that carries a 10 years maximum penalty. The facts of that matter are as follows: the victim is again a 14 year old male of Fualalo in Savaii. On Saturday 01 May 2010, the victim and his cousin were selling koko Samoa at the Salelologa market. After they sold their cocoa they made their way down to the Salelologa wharf to meet their brother who worked there. While they were walking towards Salelologa wharf and in front of Pulufagas petrol station they saw the defendant and three other men drinking beer at the barbecue adjacent to the petrol station. Summary of facts relates that you called them over and when they came over you intimidated them and slapped both of them across the face and took their money. The sum of money was $93.00 which you kept and the matter was reported to the police that day. When the police apprehended you, you handed over $71.00 of this money. It is not clear whether the police have returned this to the complainant but if they have not done so, there is to be an order that they are to immediately return this $71.00 to the complainant in this matter. That leaves an outstanding balance but since I have just sent you to prison there is no point in ordering that you pay that balance because you cannot do that from prison.

But again Fono this offence involved actions on a young male child. These are not the actions of a real man my friend. In respect of the robbery charge you will be convicted and sentenced to 6 months imprisonment but as this is a separate offence that term is cumulative to the indecent assault charge.

O lona uiga e 24 masina ia le faaiuga mo moliaga uma ia e lua ae tatau ona toese mai iina le taimi lea sa e nofo taofia ai e faatali le mataupu lenei. Ua e malamalama i le faaiuga o lau mataupu (defendant indicated he understood).

............................
JUSTICE NELSON