Police v Mafiti [2015] WSSC 205 (27 November 2015)

IN THE SUPREME COURT OF SAMOA
Police v Mafiti [2015] WSSC 205

Case name:	Police v Mafiti
Citation:	[2015] WSSC 205
Decision date:	27 November 2015
Parties:	Police (defendant) v Palemene Mafiti male of Tiavea Aleipata & Afega (defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa
Judge(s):	Justice Tuatagaloa
On appeal from:
Order:	The accused is convicted and sentenced to two (2) years suspended sentence plus $500 to be paid towards Court costs.
Representation:	Ms Toailoa for the Prosecution Mr Enari for the Defendant
Catchwords:	Indecent assault
Words and phrases:
Legislation cited:	Crimes Act 2013 s 58(3)
Cases cited:	Police v Asueru Toese
Summary of decision:

SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

PALEMENE MAFITI, male of Tiavea Aleipata & Afega
Defendant

Counsel:
Ms Toailoa for the Prosecution
Mr Enari for the Defendant

Date: 27 November 2015

SENTENCE OF JUSTICE TUATAGALOA

The charge:

1. The accused was originally charged with sexual connection of touching or fondling the victim’s vagina and the alternative charge of indecent assault.
2. The hearing proceeded and during the hearing the prosecution withdrew the sexual connection charge and the accused vacated his ‘Not Guilty’ plea to the charge of indecent assault and substituted with a ‘Guilty’ plea.
3. The accused is therefore appearing to be sentenced on one (1) count of indecent assault upon a 7 year old child. The penalty under s 58(3) of the Crimes Act 2013 is not more than 14 years’ imprisonment.

The offending:

4. The accused has confirmed the summary of facts which basically says that;
   • ∗ The victim and her family reside at Afega-uta on the property of Savea Sano Malifa as caretakers of Mr Malifa’s cattle farm.
   • ∗ The accused also look after a cattle farm not far from that of the victim and her family.
   • ∗ The accused and the victim’s family became very good acquaintances and the accused would usually go to the victim’s family and was treated by the victim’s family as a member of their family.
   • ∗ On Saturday, 24 January 2015 the accused after a drinking session with the victim’s father stayed the night at the victim’s house.
   • ∗ The next morning, the victim’s father was not at home and her mother had gone to the shop leaving the victim and older sister at home with the accused who, was still sleeping.
   • ∗ The accused asked the victim to come to where he was, the victim went over and the accused touched her on the genitals.
   • ∗ The victim’s mother returned from the shop and saw the accused hands on the victim’s genital area.

The accused:

5. The accused is a 70 year old male originally from Tiavea, Aleipata but at the time of the offending was living at Afega-uta looking after a cattle farm for almost 30 years. He often spent time at the victim’s family and most often sleeps there.
6. The summary of facts says that the accused is a first offender.
7. The victim’s family has confirmed an apology by the accused family to the victim’s grandparents. The accused had also personally apologised to the victim’s father. Both apologies have been accepted and the victim’s family is said to have forgiven the accused.

The Victim:

8. The victim is 7 years old and lives with her parents and older sister at
   Afega-uta and is at Year 2 at Afega Primary School. The victim’s parents look after the cattle farm belonging to Savea Sano Malifa.
9. The mother in the Victim Impact Report say there were, no physical injuries noted on the victim’s genital or any psychological impacts that she observed of her daughter since the incident.

The Aggravating Factors:

∗ Age disparity: The accused is 70 years old, the victim is only 7 years old. The bigger the disparity in age the more vulnerable the victim is.
∗ Breach of trust: The accused has been treated by the victim’s family as a member of their family. The victim’s parents treated him with respect because of his age. I accept that the accused by doing what he did breached this trust between him and the victim’s parents.

The Mitigating Features:

10. The only mitigating features I find are those personal to the accused as follows:
    • ∗ Apology by the accused personally to the victim’s father.
    • ∗ Remorseful: The accused in the pre-sentenced report says he is remorseful and I accept that.
    • ∗ First offender: The accused is 70 years old and this is the first time he has appeared in Court. He has been a law abiding citizen for the last 69 years and I give him credit for that.
    • ∗ Early plea: Although the accused only changed his plea from not guilty to guilty during the trial, as an accused he is nevertheless presumed innocent until proven guilty. The circumstance of the change of plea was, to the alternative or lesser offence when the leading charge was withdrawn by prosecution. Given those reasons the accused will still be entitled to a ⅓ discount.

Discussion:

11. In deciding on an appropriate sentence to impose I take into account the increase in the maximum penalty from 7 years to 14 years for indecent assault on a child under 12 years old.
12. The prosecution suggests a custodial sentence with a starting point of 4 years. The prosecution referred the Court to Police v Asueru Toese^[1] where the Court imposed a starting point of 4 years and sentenced the accused to 3 years’ imprisonment.
13. The Police v Asueru Toese^[2] case may be of relevance but in that case the accused was the step-father of the victim and the step-father did more than fondling the victim’s genitals. He also licked the victim’s genitals.
14. In the circumstances of the present case, this was a fleeting touch of the genitals and there are no discernible injuries to the victim, physical or psychological.
15. On the particular circumstances of this offending a custodial sentence is not appropriate. This does not mean that every 70 year old first offender will be given a non-custodial sentence where they appear on indecent assault charges. This is a sentence particular on the circumstances of this case.
16. The accused is convicted and sentenced to two (2) years suspended sentence plus $500 to be paid towards Court costs.
    

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

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^[1] unreported (6 May 2015)
^[2] ibid