Police v Soisoi [2013] WSSC 51 (24 June 2013)

SUPREME COURT OF SAMOA

Police v Soisoi [2013] WSSC 51

Case name: Police v Soisoi

Citation: [2013] WSSC 51

Decision date: 24 June 2013

Parties: POLICE v FA’AUA PEALA SOISOI

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Nelson J

On appeal from:

Order:

Representation:
O Tagaloa for prosecution
Defendant unrepresented

Catchwords:

Words and phrases:
Legislation cited:
Crimes Act 2013

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

THE POLICE

Prosecution

AND

FA’AUA PEALA SOISOI.

Defendant

Counsel: O Tagaloa for prosecution

Defendant unrepresented

Sentence: 24th June 2013

SENTENCE

The defendant appears for sentence on two charges. The first charge is attempted sexual violation of the complainant on the 15th of May this year. The second is indecent assault on the same day of the same girl. As the defendant and the complainant are from the same village there will issue an order; suppressing publication of the details of the complainant including her place of residence and the place of this offence.

The police summary of facts sets out the facts of this matter as follows: the defendant is a 37 year old single male currently employed as carpenter. He was rendering tautua like most Samoan males to his family. As stated earlier he is from the same village as the complainant. Its clear from his probation office pre-sentence report and the references attached thereto that he is a person of good character. Why he became involved in the present offending is difficult to understand. The young girl involved is a 15 year old female. She had just turned 15 when this offence occurred and was attending the village primary school.

O the evening of Wednesday 15th of May 2013 she was sent by her mother to get some money to buy kerosene for their lantern. She headed to her uncles house inland for this purpose. She met one of her school friends on the way and they walked together. Along the way they met the defendant. He asked them where they were going, they told him they were travelling inland. The two girls continued walking. The complainants friend stopped off at her house and the complainant continued her journey alone. She completed her errand and was returning home when this incident occurred.

The defendant appeared out of nowhere, grabbed her hand, covered her mouth and took her under a fu’afu’a tree. She tried to cry out for help but could not because he had covered her mouth. He undressed her and forcefully laid her on the ground. He proceeded to suck her breasts and the summary says he spat on his hand and rubbed it against her private part. Then he hopped on top of her and tried to insert his private part into hers. Fortunately the complainants father arrived at that time and shone a torch onto the defendant causing the defendant to flee. The complainant was taken home by her father and the matter was eventually reported to the police.

These facts indicate that the defendant seemed to have been waiting for the complainant to return along the road. He had seen the two girls go inland and the complainant returning alone. He saw his opportunity and he took it. It is fortunate for the complainant that her father came looking for her and intervened. The defendant told the probation office that he was sexually attracted to the complainant because she was very pretty. So the defendants intent in the matter is quite clear.

Attempted sexual violation is one of many new offences introduced by Parliament in the Crimes Act 2013. It is the modern version of the old offence of attempted rape. But the new offence carries a higher maximum penalty of 14 years in prison. The new maximum obviously reflects Parliaments concern at the increase in violent sexual offending in this country and represent its attempt to address the problem. The courts are bound to recognize this concern and give effect to Parliaments intent. Indeed that is the very essence of the role of the court.

There is no question the seriousness of the offending requires a penalty of imprisonment. The aggravating factors include the age difference between the defendant and the girl of 22 years and the use of force to subdue and overcome the complainants resistance. Because a 37 year old man versus a 15 year old girl is no contest. There is also no doubting the impact that this offending has had on the 15 year old girl and the fact that the defendant in this matter lay in ambush awaiting his prey. And the fact that the offending was carried out in semi-dark conditions which is why the girls father was using a torch.

As noted the new penalty for this offence is 14 years in prison. Considering all the relevant circumstances of your case a 10 year imprisonment penalty is an appropriate start point. From that start point I deduct approximately one-third for your guilty plea namely a period of 3 years. Leaves a balance of 7 years. You have a previous conviction Faau’ā for a different offence of violence so that is irrelevant to this offending. I therefore treat you as a first offender. For the fact that you are a first offender I will deduct a period of 1 year leaving a balance of 6 years. According to the girls father you appeared in person on the night the incident occurred and kneeled and apologized to him and his wife for what you had done. This is recorded in the probation office report where it also says the girls father has forgiven you for what you did. But he accepts this matter must be dealt with by the law. That action by you is a good expression of your remorse in this matter as you told the court this morning.

For those factors I will reduce your balance of imprisonment by a further 12 months. That leaves a balance of 5 years.

For this matter you will convicted and sentenced to 5 years in prison but your time in custody awaiting sentence is to be deducted from that period.

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

JUSTICE NELSON