Police v Liaina [2015] WSSC 175 (20 October 2015)

IN THE SUPREME COURT OF SAMOA
Police v Liaina [2015] WSSC 175

Case name:	Police v Liaina
Citation:	[2015] WSSC 175
Decision date:	20 October 2015
Parties:	Police (Prosecution) and Sini Ami Liaina male of Solosolo & Apia (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tuatagaloa
On appeal from:
Order:	I convict and sentence the accused, Sini Ami Liaina to 19 months imprisonment.
Representation:	Ms Sio & Ms Ioane for Prosecution Accused appears in Person
Catchwords:	Indecent assault – age disparity –
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

SINI AMI LIAINA,
male of Solosolo & Apia
Defendant

Counsel:
Ms Sio & Ms Ioane for Prosecution
Accused appears in Person

Sentence: 20 October 2015

ORAL SENTENCE OF JUSTICE TUATAGALOA

The Charges:

1. The accused is 50 years old and now appears for sentence on the charge of indecent assault after a hearing of this matter where he was found ‘Not guilty’ of attempted sexual connection but found ‘Guilty’ of indecent assault. The offence of indecent assault carries a maximum penalty of five (5) years’ imprisonment.

The Background:

2. The accused is well known by the young victim’s parents, the victim and her siblings. The accused is not only from the same village as the victim’s mother but he usually does work for the victim’s father and sometimes around their house at Siusega where the victim lives with her parents.

The Offending:

3. The facts as accepted by the Court are as follow:
   • On 26/12/2014 the victim’s father went and got the accused from Solosolo to come and cut or trim the front hedge (sala le pa aute) of their house at Siusega. The accused was dropped off and the victim’s father went somewhere.
   • At home was the victim who was putting up curtains in the house; in the house with her are her two brothers, one older and one younger than her and outside working in the front garden was the mother.
   • The accused never denied kissing the victim and touching her breasts but said the victim consented. The Court has found that the victim did not consent.

Aggravating/Mitigating:

4. I find the following aggravating features of this offending:
   1. Age disparity/vulnerability of the victim: The accused was 50 years old and the victim was only 16 years old. There is a 34 year age difference. The bigger the age gap, the more vulnerable the victims of offences are.
   2. Breach of Trust: As mentioned earlier the victim and her family know the accused very well because he is not only from the same village of Solosolo as the victim’s mother but the victim’s father has him do a lot of work for him. This trust is so obvious when the victim’s father dropped him off at his home at Siusega and went elsewhere.
   3. Restraint of movement: I also find that the accused by holding the victim tightly to him thereby not allowing the victim to be able to freely move away as an aggravating feature.
5. The accused previous conviction is an aggravating feature personal to the accused.

Comparable Cases:

6. The prosecution has provided or cited authorities of sentences imposed by the Court. These sentences range from restitution to supervision and community service to custodial. The range of sentences means that each decision made depends on the circumstances and merit of each case.

Starting Point:

7. The fact that this accused committed sexual offences before and was only released towards the end of last year and again committed another sexual offending shortly after, makes him very dangerous to society and especially to young girls. In my view, an imprisonment term is not only appropriate but is also in the best interest of the public.
8. I impose a starting point of 16 months and increase it to another 3 months for previous conviction. I found no mitigating features to the offending or personal to the offender.
9. I find the accused being a 50 year old male doing this to a 16 year old as indecent in itself and abhorrent behaviour in any society. It is obvious that this accused has a sexual deviant problem that must be addressed. I am not aware of any services or specific counseling available for this sort of deviance. Even if there are, it won’t affect the Court’s decision of imposing a custodial sentence.
10. I convict and sentence the accused, Sini Ami Liaina to 19 months imprisonment.
    

...........................................................
Justice Mata Tuatagaloa