Police v Malaelue [2013] WSSC 14 (14 January 2013)

SUPREME COURT OF SAMOA

Police v Malaelue [2013] WSSC 14

Case name: Police v Malaelue

Citation: [2013] WSSC 14

Decision date: 14 January 2013

Parties: THE POLICE, Prosecution and SALE MALAELUE, male of Satapuala and Falefa, Defendant

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Nelson

On appeal from:

Order:

Representation:
F E Niumata for prosecution
Defendant unrepresented

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

THE POLICE

Prosecution

AND

SALE MALAELUE, male of Satapuala and Falefa.

Defendant

Counsel: Ms F E Niumata for prosecution

Defendant unrepresented

Sentence: 14 January 2013

SENTENCE

Because this is a case of sexual offending there will issue the usual suppression order in respect of the details of the victim including the village where this offence occurred. The defendant is a 20 year old male single unemployed but works on a plantation to contribute to the family expenses. He is a neighbour of the victim who is a 9 year old girl still at primary school.

The police summary of facts which was accepted by the defendant states that on Saturday, 01 December last year the victim was asleep in her bedroom with a younger cousin. The defendant came to outside of her window, climbed in and approached her on the bed. He opened the victims shorts and panties and began fondling her private part. The victim by this stage was awake and she cried out and resisted the defendant. However the defendant persisted and also performed oral sex on her. His actions were interrupted by noises coming from elsewhere in the house causing him to stop and quickly flee the scene.

The victims mother entered the bedroom and found the victim crying on the bed. The victim reported the incident to her mother and the matter was forwarded to the police. The defendant was apprehended and charged with one count of indecent assault. A charge to which he pleaded guilty at the first mention.

The court has not been given a medical report but the victim impact report states that the victim sustained scratches to her private part as a result of the defendants assault. It further states that the defendant digitally penetrated her and that this caused her pain. However that is not referred to in the police summary of facts and the court can only sentence on the basis of the summary of facts that has been admitted to by the defendant. The victim impact report also goes on to state that the young girl feels embarrassed about what happened because some children of the village have found out about it. As we all know young children can be very cruel in teasing each other about incidents like this. That is also something that this victim will have to put up with.

No formal ifoga has been carried out but the report notes the defendants mother has apologized to the victims family. They have accepted the apology. However resentment understandably remains because of the defendants actions. Again understandable as these people are neighbours.

The maximum penalty for the offence you have pleaded guilty to of indecent assault is 7 years in prison. Because of the seriousness and prevalence of this kind of offending it is usual for the court to impose imprisonment sentences. Given the very young age of the girl and the other circumstances of the offending namely its occurrence at night by you climbing into the girls bedroom, there is no question the offending requires an imprisonment term. To denounce the defendants conduct and to send a message to other young men that if you act in this “moetolo” (sleep-crawling) fashion you will likely suffer the same fate.

An appropriate start point for sentencing is 4 years in prison. From that you are entitled to certain deductions which must now be made. For your guilty plea I deduct one-third of that term leaving a balance of 32 months. From that balance I deduct 12 months to reflect the fact that you are a first offender leaves a balance of 20 months. To reflect your age -as a young defendant I will deduct a further 2 months rounding off the term to 18 months in prison. You will be convicted for this offence and sentenced to 18 months in prison. Your remand in custody time is to be deducted from that term.

.........................

JUSTICE NELSON