Police v Toese [2015] WSSC 231 (6 May 2015)

IN THE SUPREME COURT OF SAMOA
Police v Toese [2015] WSSC 231

Case name:	Police v Toese
Citation:	[2015] WSSC 231
Decision date:	06 May 2015
Parties:	POLICE (Prosecution) ASUERU TOESE, male (Defendant)
Hearing date(s):	-
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	On the offence of indecent assault convicted and sentenced to 3 years in prison, any remand in custody time to be deducted.
Representation:	O Tagaloa and Ms Amosa for prosecution A Faasau for defendant
Catchwords:	-
Words and phrases:
Legislation cited:
Cases cited:	Police v Kum [2000] WSCA1 Police v Metu [2013] WSSC 103 Police v Palanapa [2012] WSSC 16 Police v Faleiva [2011] WSSC 25 Police v FS [2009] WSSC 99
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

ASUERU TOESE, male.
Defendant

Counsel: O Tagaloa and Ms Amosa for prosecution
A Faasau for defendant.

Sentence: 06 May 2015

SENTENCE

1. After a defended hearing the defendant was found guilty by unanimous verdict of a panel of assessors of committing an indecent assault on his then 5½ year old step-granddaughter. The defendant is the partner of the victims biological grandmother. The indecent assault occurred at the defendants house where the child was living and going to school. The usual suppression order will issue in relation to prohibiting publication of details concerning the young girl and to further protect her identity prohibiting publishing the details of the defendant, her step-grandfather.
2. The incident happened in the month of October 2013 during the day when no one apart from the defendant, the victim and the victims younger sister were at home. The sexual assault consisted of the defendant fondling the girls genitalia. He was seen through the window of the house by a transient girl friend of the defendants wife who at the time was living with the family.
3. There was vigorous dispute at the trial whether the girl had actually seen what she says she saw but the assessors verdict made it clear they accepted her word. In her evidence at page 37 of the transcript she described what she saw in the following manner:

“Tali: o’u tu loa lea ua ou foi mai la e loka foi tua. Ou sau lea ou te taamilo mai luma, o’u oo loa i le faamalama o’u tilotilo i totonu lea na ou iloa atu ai le toeaina ma Sefulu laititi. Ou te iloaina atu o loo taoto le teineitiiti ao lea e tootuli ai luga le toeaina.

Fesili: faaauau

Tali: la e taoto le teineitiiti e leai ni lavalava ae na’o le ie lavalava o le toeaina la e sulu.

Fesili: faaauau,

Tali: na e tagotago le toeaina fai fai le pi a le teineitiiti.”

She goes on to say further on page 37

“Fesili: and when he saw you what happened next?

Tali: na iloa mai lea o a’u, e leai sana tala na fai mai, na tu mai lava ia i luga tatala le faitotoa. O’u sau loa lea i totonu.

Fesili: and when you entered what happened?

Tali: ou laa loa lea i totonu o le fale ou te alu agai tua i le umukuka ma fai mai ai lau tala i le toeaina.

Fesili: what did you say?

Tali: na ou fai atu i le toeaina ou te ofo ia ia i le fai o le la mea i le la tamai alualu toto. Ae oso le toeaina i lona ita ma fai ana folafolaga e ka kipi au i le naifi.”

4. As sexual assaults of this nature go, the defendants physical actions would in my assessment be at the lower end of the criminal scale. The witness testimony indicates he was fondling the girls genitals and the degree of violence involved in that would have been minimal. But there would have been an element of coercion in that the victim in the words of the witness was lying down on the floor while the defendant was kneeling over her doing what he was doing. What makes what the defendant was doing serious and aggravates the offending is the very young age of the girl; fact that he is almost 60 years older than her; her vulnerability because she was alone at home with him at the time; and the gross breach of duty of parental love and affection that a grandfather, even a step-grandfather should have for a young granddaughter under his care and control.
5. I do accept however defence counsels submission that the offending was opportunistic and there is no evidence it was premeditated or pre-planned. The defendant took advantage of the opportunity when the girl was alone. I also accept the submission this is one-off offending. There is only one count of indecent assault the defendant was found guilty of.
6. The offending is further aggravated as noted by the prosecution in their submission by where it occurred namely in the family home that was at the time shared by the defendant and the victim. The family home is a place that should be filled with familial love and affection not misuse and abuse. The effect of the offending on this young girl was noticeable at trial. She was happy to speak of everything else freely and openly except for the offending and what her step-grandfather actually did to her. The high point of her evidence was that she acknowledged something did happen at the house at Palisi.
7. I also noted her strong adverse reaction when first brought into the court room. This was clear for all to see hence her giving evidence via video link from the Samoa Victim Support Room next door to the court. But even this arrangement used for very young or very difficult child witnesses failed to allay her fears. The prosecution were unable to illicit from her any details as to what happened. There is no doubting from all this the drama of the offending and the impression left in the psyche of this young child. It was equally clear the offending has had the effect of generating a rift in this family. On one side was the defendant, his wife and one aunty of the victim who were all living together at Palisi and on the other side the victim, the victims biological parents and another aunty.
8. The victim impact report filed speaks of these rips being reconciled. But one wonders how far that goes. Human experience being what it is, forgiving is not the same as forgetting. I also bear in mind that any such reconciliation was among the adults. This process does not necessarily extend to the young victim concerned. Victims who are often lost sight of in the process.
9. There is no question an imprisonment penalty is necessary and appropriate to hold the defendant accountable for what he did; as a personal deterrent to him; as a general deterrent to everyone else and to accord with this countrys obligations and commitment to the principles of the United Nations Convention on the Rights of the Child. Of which no less a personage then Lord Cooke of Thordon former president of our Court of Appeal said: “All Samoan Courts should have regard to the Convention in cases within its scope.” Our Court of appeal in Police v Kum [2000] WSCA1 added:

“The Convention requires protection of the child from sexual abuse while in the care of parents and any other person who has the care of the child. The preamble recognises that a child "should grow up in a family environment, in an atmosphere of happiness, love and understanding." The judge in this case has not “had regard to this Convention on sentencing on a case” within its scope.” The Court should send out a strong message, where appropriate as in this case, that offences of this nature by a grandfather on a granddaughter in his care will not be tolerated and will be met with a sentence of imprisonment sufficient to mark society's denunciation of such conduct.............punish the offender and serve as a deterrent to the offender and others.”

10. Was a case concerned with a sexual assault by a grandfather on his granddaughter. That passage applies equally to this case. In accordance with our culture I draw no distinction between a grandfather and a step-grandfather.
11. The maximum for the offence is now 14 years under the recently enacted Crimes Act 2013. That is an increase from the former maximum penalty of 7 years. That is a recognition by Parliament of the disturbing increase of sexual offending generally especially in relation to young children. A common start point for low scale indecent assaults on children under 12 years of age under the old legislation was around 4 years in prison. For example the case of Metu [2013] WSSC 103; the case of Palanapa [2012] WSSC 16; the case of Faleiva [2011] WSSC 25; the case of FS [2009] WSSC 99. There are many others.
12. I accept in principle the prosecution submission this may need revisiting given that Parliament has seen fit to double the maximum penalty. But such increases should not be dramatic and should be phased in over time and always be commensurate with the courts assessment of the criminality of the defendants behaviour and the circumstances of the particular case.
13. Considering the circumstances of the matter I start sentence at 4 years which in my view is appropriate to the facts and circumstances. As counsel has properly reminded the court there are deductions you are qualified for Asueru from that 4 year start point. If you had pleaded guilty at the outset to the alternative charge of indecent assault notwithstanding your not guilty plea to charges of sexual connection you would have been entitled to a sizeable discount. Especially considering the tender years of the victim. But you did not sir, you chose to maintain your not guilty plea even when given a second opportunity to reconsider on trial day. The only deduction therefore you are qualified for is your good record of service to the family as outlined in the pre-sentence report. Usually a 6 months deduction for that is applied. I will also deduct a further 6 months in recognition of the fact that at age 64 years this is your first court appearance. That is a total deduction of 12 months or 1 year, that leaves an end sentence of 3 years in prison. I believe that reflects the seriousness of the offending of a 64 year old grandfather on a 5½ year old step-granddaughter as disclosed in this case.
14. On the offence of indecent assault convicted and sentenced to 3 years in prison, any remand in custody time to be deducted.
    

JUSTICE NELSON