Police v Evagelia [2010] WSSC 8 (18 January 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

PEIA EVAGELIA,
male of Falevao, Aufaga and Aleisa.
Defendant

Counsels: Mr M. Lemisio for the prosecution
Ms RV. Papalii for the defendant

Sentence: 18 January 2010

SENTENCE

Defendant appears for sentence on a charge that on 13th July 2008, he did indecently assault the complainant a girl under 12 years of age. At the time the complainant was in fact only 7 years of age. The defendant is from the same village as the complainant. A suppression order is to issue as to the complainants name, her village or any other information that may identify her.

The summary of facts indicates the offending occurred around 1am in the morning. The victim was asleep in her auntys house and the defendant meanwhile was drinking beer with friends and according to the pre-sentence report from the Probation Office, had drunk a considerable quantity of alcohol. The defendant was highly intoxicated and the drinking session erupted into a fight during which the defendant was punched. The session dispersed but the defendant went looking for the person who punched him. He went to find the victims uncle at their property and came across the victim sleeping in one of the huts. He went to her, grabbed her leg, pulled her out of the house and carried her off into the bushes. The victim cried out so he picked up a stick and hit her with it and also told her not to make any more noise. He laid the victim down and removed her clothes. He used a stick, possibly the same one he beat her with to penetrate her vagina then used his fingers to digitally penetrate the victim. After completing these acts, he left the victim to walk home by herself.

The victims family by this time were looking for her and found her limping home on the road, distressed and crying. She told them what happened and was taken to Motootua Hospital. On examination, her perineum or area around the vaginal opening was found to be blood stained and dirty. The vagina was bruised and congested and had an unhealthy discharge. The hymen was torn and the vagina was lacerated to the extent that she required stitches. She was admitted for three days for treatment of her injuries using painkillers and antibiotics.

The defendant has pleaded guilty to one count of indecent assault which carries a seven year maximum penalty. As defence counsel concedes, this is a very serious example of indecent assault. The young age of the girl who was 7 years compared to the 30 year old defendant, the kidnapping of the girl at 1am from her bed by a drunken stranger, the use of violence in that as well as in the carrying out of the indecent acts involved, with the resultant injuries to the victim from the degree of force used as is apparent from her medical report, all these aggravate what is already serious offending. There is no question the circumstances require imprisonment and the sentence must be commensurate with the defendants actions, "the criminality of the offending" as it is sometimes called.

The courts approach to cases of indecent assault by older males on the young and vulnerable is well known and documented in previous cases and decisions, and more than lip service is paid in this country by its courts to the rights of children. Young females must be protected from abhorrent acts of this nature and the courts will continue to stand firm in its dealing with such unfortunately prevalent behaviour.

No sentence this court can impose can undo the damage the defendant has done to this innocent victim but the sentence should also reflect society’s condemnation of such a heinous crime against such a young victim whose life will forever be scarred by the defendants behaviour. A deterrent sentence is clearly called for in this case.

Considering all factors, a starting point of 6 years out of the 7 is appropriate. From that is deducted 6 months for the defendants clean record and all other factors in his favour. For his guilty plea, which was not entered at the first reasonable opportunity, but was only entered on the 22 December last year after the matter was prepared for hearing more than once, the court will allow 6 months. You are convicted and sentenced to 5 years imprisonment.

JUSTICE NELSON