Police v Pasina [2011] WSSC 37 (16 February 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

PENITITO PASINA aka LILIKO PASINA
male of Samatau.
Defendant

Counsels: Ms P Valoia for prosecution
Defendant unrepresented

Sentence: 16 February 2011

SENTENCE

This is another case involving an indiscretion by an older man on a young female. But in this particular case the defendant who is 34 years of age appears for sentence on a charge of indecently assaulting a 6 year old female of his village. In case one has not been issued there will issue a suppression order prohibiting publication of the details of the complainant in this matter including her village and any other details that may serve to identify her.

It appears from the document before me the complainant is known to the defendant as she is the daughter of one of the defendants friends. The summary relates that on Saturday the 01st January 2011 (the correct date) around 9:00pm at night the complainant together with her mother attended the village bingo. While the mother was at the bingo the complainant was playing outside with the other children. The summary relates that the defendant approached the complainant and told her to come with him to a nearby house. This house was uninhabited and was located in front of where the bingo was being held. No doubt because the defendant was known to the complainant the young girl went with him. When they got to the uninhabited house the defendant led her inside undressed her and laid her on the floor. He then proceeded to engage in oral sex on the complainants private part.

The complainant said that this caused her some discomfort and pain and that after the indecent assault had been performed the defendant told her not to tell anyone what he had done. Whereupon he then took her back to the area where the bingo was in progress. On her arrival at the bingo house the complainant went straight to her mother and told her what the defendant had done. The next day the mother reported the matter to the police and this has led to the defendants appearance today.

Although he pleaded guilty to the charge the defendant originally questioned the accuracy of the police summary of facts. He subsequently relented but since the defendant is not represented by counsel and since the court must not overlook a defendants legal rights, I called for the appearance of the complainant to hear from her first hand what had happened. Having seen and heard the young girl I am of the clear view that there is no basis for the defendant questioning the police summary of facts. Indeed when the defendant was given an opportunity to question the young girl he indicated he had no questions for her thus indicating full acceptance of her testimony.

The defendant has told the court that the reason he did this was because he was drunk at the time of the offending. Well that is a poor excuse and it is certainly no defence in law. It is also hard to imagine how even a drunk defendant could do this to a 6-year old.

This defendant is not the first to come before the court on this kind of offending and sadly probably will not be the last. But the court has consistently emphasized the seriousness of this kind of offending and the need to protect our young girls from such predatory acts perpetrated upon them by older men. And this has meant that imprisonment is usually the most appropriate penalty for this offence especially where the offending involves a breach of trust as in this case where the defendant was known to the complainant and that is why she willingly went with him. There is no reason in this case for me to depart from the normal approach of the court to such matters.

The maximum penalty for this offence is 7 years. I use a start point of 4 years to reflect the complainants very young age as well as the nature of the indecent assault involved. I will allow you full credit for your guilty plea and deduct one-third of the penalty leaving a balance of 32 months. For the fact that you are a first offender for this offence and was previously of good character I will deduct a further 12 months leaving a balance of 20 months. For the banishment of you from your village plus the apology that you rendered to the complainants family for this matter I will deduct from that 20 months a further 6 months leaving a balance of 14 months. There are no other factors requiring adjustment to your penalty you will be convicted for this offence and sentenced to 14 months in prison.

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