Police v Ioane [2014] WSSC 74 (28 November 2014)

[IN THE SUPREME COURT OF SAMOA]

Police v Ioane [2014] WSSC 74

Case name:	Police v Ioane
Citation:	[2014] WSSC 74
Decision date:	28 November 2014
Parties:	POLICE Prosecution AND AH FOOK IOANE female of Leauvaa-uta, Accused
Hearing date(s):	17&18&26 August 2014
File number(s):	S85/14, S86/14, S90/14
Jurisdiction:	CRIMINAL
Place of delivery:	MULINUU
Judge(s):	CHIEF JUSTICE PATU FALEFATU SAPOLU
On appeal from:
Order:
Representation:	F Lagaaia for prosecution T Leavai for accused
Catchwords:
Words and phrases:	assault with intent to commit sexual violation, abduction of a child, maximum penalty, aggravating and mitigating features, sentence
Legislation cited:	Crimes Act 2013
Cases cited:	Police v Fiaputa [2013] WSSC 121 Police v Pauesi [2008]WSSC 23 Police v Sinoti [2014] WSSC 35 R v Kolio [2001] NZCA 260
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NOs: S85/14, S86/14, S90/14

BETWEEN

P O L I C E
Prosecution

A N D

AH FOOK IOANE male of Leauvaa.
Accused

Counsel
F Lagaaia for prosecution
T Leavai for accused

Sentence: 28 November 2014

S E N T E N C E

The charge

1. The accused is a 19 year old male of Leauvaa-uta. He appears for sentence on: (a) one charge of doing an indecent act on a child which is defined as a person under the age of 12 years, contrary to s.58 (3) of the Crimes Act 2013, which carries a maximum penalty of 14 years imprisonment, (b) one charge of assault with intent to commit sexual violation, contrary to s.53 (2) of the Act, which carries a maximum penalty of 14 years imprisonment, (c) one charge of abduction of a child under 16 years, contrary to s.131 of the Act, which carries a maximum penalty of 10 years imprisonment, and (d) one charge of using threatening words for the purpose of sexual conduct, contrary to s.62 (1) of the Act, which carries a maximum penalty of 5 years imprisonment. The accused pleaded not guilty to all charges but was found guilty at trial.

The offending

2. The material facts of this case are very brief. On 26 December 2013, the victim who was then 7 years old was sleeping inside a mosquito net with her parents in their house which is an open house. Between 3am and 4am in the morning, the accused who was intoxicated from a party with his friends entered the house, picked up the victim, and carried her to the road. When the victim woke up, the accused put her down and led her to a secluded cocoa plantation where he laid her down and threatened her not to scream. He then kissed her and inserted his fingers inside her vagina. The accused then took the victim back to her house and sent her home from the road.

The accused

3. The accused comes from a financially weak family but with a stable environment. He finished primary school at Year 8 and then attended a trades training centre for two years doing carpentry. When he left school he could not find employment. So he stayed home and worked on his family’s plantation to support his family.
4. After this offending occurred on 26 December 2013, the accused was convicted of possession of narcotics on 26 May 2014 and placed under supervision and ordered to do community work. While being remanded in custody for the present offending, he was convicted and sentenced to 4 months imprisonment on 14 August 2014 for escape from lawful custody.

The victim

5. It appears from the victim impact report that this incident has affected the victim psychologically. Her mother says that since this offending, most of the time when the victim is at home she would be staring outside and not doing anything else. The victim also does not now comply properly with very simple instructions and has been doing poorly at school. Her school teacher reports that the victim is always caught staring at her classroom table for no reason at all and is having problems with concentrating. The victim still remembers what had happened to her and can no longer go to the store or stay at home by herself.
6. The parents of the victim have also been affected. The victim’s mother no longer allows non-family members to her family’s house for fear that this type of incident might happen again to her daughter. She has become worried and concerned for her daughter’s safety and any long term effects of this incident on her. The victim’s father also cannot find it in his heart to forgive the accused for what he did to his daughter.

Aggravating and mitigating features

7. Even though it is true as submitted by counsel for the accused that the victim sustained no physical harm, that the offending lasted for a relatively short time, and that the accused returned the victim to her home safely, there are still several serious aggravating features of this offending which are set out in the prosecution’s sentencing memorandum. These are: (a) the very young age of the victim, (b) home invasion and the time of the night it happened, (c) the carrying of the victim by the accused from the mosquito net in which she was sleeping, (d) the threats made on the victim, (e) the fear and distress the victim must have experienced during the whole duration of the offending, (f) the psychological impact of the offending on the victim after it happened, and (g) the impact of the offending on the parents of the victim. The mitigating features relating to the offending is that the accused returned the victim safely to her home after indecently assaulting her. The victim also appears to have suffered no physical harm. This incident also did not last for long.
8. There is no mitigating feature in relation to the accused as offender except his relatively young age at the time of the offending.

Discussion

9. The case of Police v Sinoti [2014] WSSC 35 has similarities to this case but was more serious. The accused in that case was charged with one charge of assault with intent to commit sexual violation which carries a maximum penalty of 14 years imprisonment, one charge of sexual connection which carries a maximum penalty of 10 years imprisonment, one charge of indecent assault of a female between the age of 12 years and 16 years which carries a maximum penalty of 7 years imprisonment, and one charge of abduction which carries a maximum penalty of 10 years imprisonment. The accused was 30 years old and he carried the 13 year old victim from her home late at night while she was asleep. He then blindfolded the victim with the dress she was wearing and led her inland for quite a long distance. Along the way, the accused twice indecently assaulted the victim by fondling with her vagina and then later on forcing her to suck his penis. When the victim screamed, he threatened to kill her. Then when they came to a deserted house, the accused who was drunk fell asleep and the victim escaped and informed her family. After trial, the accused was found guilty of the charges against him. Applying the totality principle, the Court took a starting point for sentence of 10 years. The end sentence was 9 years imprisonment.
10. The other case cited in the prosecution’s sentencing memorandum is Police v Pauesi [2008]WSSC 23. That case involved five charges of rape, five charges of indecent assault, and one charge of abduction. Vaai J took a starting point of 12 years for the rape charges. After making adjustments, the end sentence was 16½ years.
11. The case of Police v Fiaputa [2013] WSSC 121 which is also cited in the prosecution’s sentencing memorandum was concerned with one charge of rape, one charge of assault, and one charge of abduction. The accused was found guilty of the charges after a defended hearing. However, it is clear from the sentencing decision of Slicer J that the evidence which came out at the trial showed that the accused actually raped the victim three times even though he stood trial on only one charge of rape. The Court took a starting point for sentence of 15 years. The end sentence after adjustments were made was 17½ years imprisonment.
12. In the New Zealand case of R v Kolio [2001] NZCA 260, the accused stood trial in the District Court on four charges of sexual violation by rape, three charges of sexual violation by oral sex, four charges of sexual violation by digital penetration, four charges of abduction, and three charges of indecent assault. The accused pleaded guilty. The District Court took a starting point for sentence of 17 years. After adjustments, the end sentence that was imposed was 15 years imprisonment. On appeal to the Court of Appeal, the end sentence was reduced to 13 years imprisonment.
13. Having regard to the aggravating and mitigating features relating to the offending in this case and applying the totality principle, I will take 8 years as the starting point for sentence. I will show mercy on the accused given his personal circumstances as a relatively young person and deduct 6 months. That leaves 7 years and 6 months.

The result

14. The accused is sentenced to 7½ years imprisonment on the charge of doing an indecent act on a child.
15. On the charge of assault with intent to commit sexual violation he is also sentenced to 7½ years.
16. On the charge of abduction the accused is sentenced to 6 years imprisonment.
17. On the charge of using threatening words for the purpose of doing an indecent act he is sentenced to 2 years imprisonment.
18. All sentences are to be concurrent.
19. Any time the accused has been in custody for this matter is to be further deducted. This is not to include his sentence of 4 months imprisonment for escape from lawful custody.
20. The accused’s sentence of 12 months probation plus 50 hours community work for possession of narcotics imposed by this Court on 26 May 2014 is cancelled. He would now serve his imprisonment sentence of 7½ years.

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CHIEF JUSTICE