Police v Ah Ching [2014] WSSC 17 (6 May 2014)

SUPREME COURT OF SAMOA
Police v Ah Ching [2014] WSSC 17

Case name: Police v Ah Ching

Citation: [2014] WSSC 17

Decision date: 6 May 2014

Parties:
POLICE (prosecution) and AUKUSO AH CHING male of Moamoa.

Hearing date(s):

File number(s): S1486/13

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:

Representation:
L Sio for prosecution
T Leavai for accused

Catchwords:

Words and phrases:

Sexual connection, indecent act, mitigating and aggravating features, maximum penalty,

Legislation cited:
Criminal Act 2013

Cases cited:
Police v Nonumalo [2007] WSCC 8;
Police v Saveaalii [2008] WSSC 7;
Police v Taueu [2007 WSSC 93
R v AM [2010] NZCA 114

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

FILE NO: S1486/13

BETWEEN:

POLICE
Prosecution

AND:

AUKUSO AH CHING male of Moamoa

Accused

Counsel:

L Sio for prosecution

T Leavai for accused

Sentence: 6 May 2014

S E N T E N C E

The charges

1. The accused appears for sentence on one charge of having sexual connection with a defendant family member, contrary to s.56 (1) of the Crimes Act 2013, which carries a maximum penalty of 14 years imprisonment; one charge of having done an indecent act on a defendant family member, contrary to s.56 (3) of the Act, which carries a maximum penalty of 14 years imprisonment, one charge of indecent assault, contrary to s.60 of the Act, which carries a maximum penalty of 5 years imprisonment; and one charge of assault, contrary to s.123 of the Act, which carries a maximum penalty of one year imprisonment. To all charges, the accused initially pleaded not guilty. At trial he was found guilty of all charges.

The offending

2. The facts of the offending in this case are set out in full in any judgment delivered on 22 April 20143. Essentially, the victim who is 17 years old is the adopted daughter of the accused. At the time of this offending, she was staying with the accused, his current wife, and their two young children a 5 year old son and a baby. On the night of 20 May 2013 at about 3:00am while the victim was sleeping, she felt the accused put his hand on her shoulder and then massaged her left breast. The accused then massaged her right breast. The baby then cried and the accused moved away from the victim. When the baby stopped crying, the accused returned to the victim and rubbed her genitalia with his hand. He then inserted his hand inside her genitalia for about five minutes. Then the baby cried again and again the accused moved away from the victim.
3. As a result of what the accused did to the victim, she could not go back to sleep. Before it was daylight, she left home for school. She related to her school mates what the accused had done to her. One of the schoolmates was called as a witness by the prosecution and she testified that the victim said as she related what the accused had done to her.
4. After school that day, the victim, instead of going home, went to her half sister and half brother who live at a different village. Her half sister, who was called as a witness by the prosecution, testified that she was surprised to see the victim who appeared to have been crying. When she asked the victim whether something had happened to her, she cried and related what the accused had done to her. The victim then stayed with her half sister for a week without going to school. She, then went to her aunty who testified that when the victim came to her house she sat down and cried.
5. Since the offending, the victim has never again returned to the accused.

The victim

6. The victim is the biological daughter of one of the accused’s sister. She was adopted by the accused and his wife at the time when she was 9 months. She is now 17 years.
7. From the victim impact report, it is clear that even though the victim has suffered no physical harm, she has suffered a lot psychologically. She has developed a habit of day-dreaming thinking about what the accused had done to her. She cannot concentrate when she is supposed to be. Some of her schoolmates now look down at her. Some people pity her which she dislikes. Some of her father’s friend think of her as a liar. Because she loves her father so much, it hurts her to be without a father as she is no longer staying with her.
8. However, the victim also says in her victim impact report that she has forgiven her father and does not wish a harsh penalty to be imposed on him but one that will teach him a lesson. She also appeared before the Court and said she has forgiven her father and pleaded for leniency on him. She does not want a harsh penalty to be imposed on him.

The accused

9. The accused is 50 years old. He and his current wife have two young children, a 5 year old son and a baby. He is a carpenter and presently earns about $1,000 a week. He left school at Year 11 and then sought employment to assist his family.
10. The accused is also a first offender. The testimonials from his church, pulenuu of his village and has current and former employers all speak highly of the accused. Likewise, the oral testimonies provided by the members of the accused’s family and the matais of his family to the probation service also speak highly of the accused’s family and the matai of his family to the probation service also speak highly of the accused. All of this shows that the accused had been a person of good character prior to his present offending.

The aggravating factors relating to the offending

11. For sentencing purposes, it is essential to identify first the aggravating factors relating to the offending because it is those factors which determine the extent of the criminality of the accused’s actions. Such factors have been referred to as “culpability assessment factors”: R v AM [2010] NZCA 114.
12. In this case, the aggravating factors relating to the offending are: firstly, the abuse by the accused of his own daughter’s trust in him as her father in their home; secondly, the vulnerability of the victim; thirdly, the pre-meditation that must have been involved on the part of the accused; and, fourthly, the psychological impact of the offending on the victim.

The mitigating factors relating to the accused as offender

13. After identifying the aggravating factors relating to the offending for the purpose of determining the extent of the criminality of the offending, I will now move on to identify the mitigating factors relating to the accused as offender.
14. The mitigating factors relating to the accused are: firstly, his previous very good character, and, secondly, the plea by the victim for leniency on her father. In this regard, I refer to what has bens said by the Courts about the forgiving attitude of the victim. In Police v Saveaalii [2008] WSSC 7; Police v Nonumalo [2007] WSCC 8; Police v Taueu [2007 WSSC 93; this Court adopted a passage from the Australian text, Sentencing in Tasmania (2002) 2nd ed by Professor Warner at para 3.420, where the learned author said:

“A victim’s wishes or forgiving attitude cannot be given priory or allowed to prevail over wider community interests. And fairness suggests a sentencing outcome should not depend on whether a victim is vengeful or forgiving. However, is some cases Courts Law been prepared to give a forgiving attitude some weight. In McGhee (1994), a case of attempted murder, where the victims had indicated they had forgiven eh offender and did not want him to be punished, Green CJ said the victim’s attitude and wishes ‘whilst not want him to be punished, Green CJ said the victim’s attitude and wishes ‘whilst not determinative are factors which vilitate against giving much weight to considerations of retribution and denunciation’. R v F (1998) was a case of indecent assault where the victims were daughters of the offender. Their univalent response tot eh offender-emotional hurt on the one hand and sadness and concern for him on the other – was considered by Slicer J to be a significant factor in the determination of sentence and one which permitted some amelioration of the penalty. In other jurisdictions, Judges have sometimes given considerable weight to victim forgiveness is cases of marital rape. But this is controversial. At most, a victim’s wishes and forgiveness should only moderate the sentence to a limited degree and only when the sentence further aggravates the distress of the victim”.

15. In R v AM [2010] NZCA 114, the New Zealand Court of Appeal said at paras [62] – [64]:

“[62] To what extend should sentencing be influenced by the views of the victim? This arises most acutely where the victim is seeking a lenient sentencing response.

“[63] Where sexual offending occurs within a family or social group, victims are frequently under pressure either not to involve the criminal justice system or to withdraw from it. Defying this pressure can have adverse consequences in terms of family or social rifts and resulting ostracism. The circumstances of the present case, discussed at [140] below in which C has suffered as a result of the fracturing of the wider family, are not untypical. Unsurprisingly, Judges often treat victims calls for leniency with caution, seeing them as likely to be the result of illegitimate family or social pressure. Giving effect to such calls may lead to increased pressure on other victims. Judges are required to treat like cases alike. (See s.8 (e) of the Sentencing Act 2002).

“[64] On the other hand, it is not easy to see why a Judge should ignore a claim by victims that the harm suffered was minimal, at least where the Judge is satisfied that illegitimate pressure has not been brought to bear on the victim. To do so would be patronizing. As well, disregarding a victim’s view in this context is likely to reduce the number of cases of rape which are prosecuted. No general rule can be set out. Judges will need to look at each case keeping in mind that some calls for leniency are a result of pressure. In addition, crime is a public wrong and so the victim’s views are a factor that, like others, normally cannot overwhelm the outcome”.

16. In this case, there is nothing to suggest that the victim was under illegitimate pressure. I will therefore will take into consideration her plea for leniency on the accused. But this will be to a limited degree as normally such a plea cannot overwhelm the outcome of the sentencing process.

Discussion

17. One of the features which I should mention that distinguishes this case from many other similar cases of indecent assault is its limited duration. There was also no violence involved. Having regard to the aggravating factors relating to the offending, I will take 2 years as the starting point for sentence on the charge of having sexual connection with a dependent family members. This is 6 months less than the starting point of 2½ years sought by the prosecution. I will then deduct 12 months for the accused’s previous good character and that leaves 12 months. I will further deduct 2 months for the victim’s plea for leniency. That leaves 10 months. There is no other deduction to be made.

The result

18. On the charge of having sexual connection with a dependent family member, the accused is sentenced to 10 months imprisonment.
19. On the charge of having done an indecent act on a dependent family number, the accused is also sentenced to 10 months imprisonment.
20. On the charge of indecent assault, the accused is also sentenced to 10 months imprisonment.
21. On the charge of assault, the accused is sentenced to 6 months imprisonment.
22. All sentences are to be concurrent so that effectively the accused will serve a total sentence of 10 months imprisonment. Any time the accused has spent in custody pending the outcome of this matter is to be deducted from that sentence.
    

----------------------------------
CHIEF JUSTICE