Police v Sio [2012] WSSC 9 (19 March 2012)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

TUNA SIO
male of Faleula-uta and Vaitele-fou.
Accused

Counsel: T Toailoa for prosecution
J Brunt for accused

Sentence: 19 March 2012

SENTENCE

1. The accused is a 23 year old male from Faleula. He is single and currently unemployed. He had initially pleaded not guilty to the charge of indecent assault. On the date of hearing he vacated his not guilty plea and substituted it with a guilty plea. The maximum penalty for indecent assault is 7 years imprisonment.
   
2. On the evening of 21 May 2009, the accused who is a maternal uncle of the victim entered the house of the victim's family while they were asleep. He kissed the victim on the mouth which made her wake up. He then pulled down the victim's shorts and sucked her vagina. At that time, the victim's mother was asleep on a separate bed. The victim did not call out to her mother as she was scared of the accused. The next day or a few days later, the victim told her aunty what had happened to her. Her aunty relayed the incident to the victim's mother. The matter was then reported to the police.
   
3. The victim is now 8 years old but was 6 years at the time of the offending. She is embarrassed about the accused's actions and worries that other people may find out about the incident.
   
4. The accused is now 23 years old. He was 20 years at the time of the offending. Counsel for the accused told the Court that the accused was heavily intoxicated at the time of the offending. The accused has apologised to the mother of the victim and their family and the matter has been settled. Counsel for the accused also told the Court that the accused was penalised by his village and ordered to pay $1,000 and provide 30 cases of herring.
   
5. The accused is a first offender. It appears from the testimonials from the paramount matai (sa'o) of his family and the pastor of his church that he was a person of good character prior to the commission of this offence. Counsel for the accused also told the Court that the accused is truly remorseful.
   
6. From the circumstances of the offending, it is clear that this is the type of misconduct which is called in Samoa as moetolo and it has serious connotations. It means entering the house where a female is sleeping at night with sexual intentions. The age difference between the accused and the victim who is his niece and the young age of the victim are other aggravating factors. So is the psychological impact of the offending on the victim. However, this case of indecent assault is not as bad as some of the indecent assault cases that have come before the Courts.
   
7. Having regard to the maximum penalty for this offence and the aggravating circumstances of the offending, I will take 2 years as the starting point for sentence. I will deduct 2 months for the belated guilty plea. That leaves one year and 10 months. I will deduct a further 10 months for the accused's previous good character and expressions of remorse. I will further deduct another 4 months for the penalty of $1,000 and 30 cases of herring imposed on the accused by his village. That leaves 8 months. The accused is convicted and sentenced to 8 months imprisonment.
   

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CHIEF JUSTICE

Solicitor
Attorney General Office, Apia, for prosecution
Brunt and Keli Law Firm for the accused