Police v Laei [2016] WSSC 142 (5 August 2016)

SUPREME COURT OF SAMOA
Police v Laei [2016] WSSC 142

Case name:	Police v Laei
Citation:	[2016] WSSC 142
Decision date:	05 August 2016
Parties:	POLICE and SIILUA LAEI male of Falelima, Falelauniu & Malie (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Mata Keli Tuatagaloa
On appeal from:
Order:	The defendant is convicted and sentenced to 11 months’ imprisonment.
Representation:	L Sio for Prosecution T Leavai for Defendant
Catchwords:	Indecent assault – victim a minor – victim a step-daughter – offending occurred more than once – pre-meditated – breach of trust – early guilty plea
Words and phrases:
Legislation cited:	Crimes Act 2013 s.56(3)
Cases cited:	Police v Ah Ching [2014] WSSC 17 (06 May 2014)
Summary of decision:

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

SIILUA LAEI, male of Falelima, Falelauniu & Malie
Defendant

Counsel:
L Sio for Prosecution
T Leavai for Defendant

Sentence: 05 August 2016

SENTENCING OF JUSTICE TUATAGALOA

1. The defendant is to be sentenced on three counts of indecent assault with a girl under 21 years old living with him as a member of his family contrary to section 56(3) of the Crimes Act 2013 with a maximum penalty of 14 years’ imprisonment for each offending.
2. The summary of facts by the Prosecution is confirmed by the defendant except for in relation to fondling of the breasts at the same time hugging the victim. Counsel for the defendant submitted that it was more the defendant’s hands ‘swiping’ across the victims breasts than fondling. Swiping or fondling it is still indecent assault if the victim did not want to be touched on the breasts.
3. The victim was 16 years’ old at the time of the offending and is the step-daughter of the defendant who is a 49 year old male.
4. The defendant on three different occasions indecently assaulted the victim at home and at night by kissing her, hugging her and fondling her breasts.
5. The defendant lived with his wife (the victim’s mother) at the wife’s family at Malie. The defendant first committed the offending against the victim while the wife was alive. When the wife passed away leaving the victim and her younger siblings in the care of the defendant, the defendant committed the other two acts against the victim. The victim told one of her aunties and the matter was then brought to the attention of the police.
6. This is a prevalent offence in Samoa within families between males who are related to victims either by blood or marriage.
7. The aggravating features of the offending are:
   1. Vulnerability of the victim not only by age (only 16 years at the time) but also the time of the offending took place was at night while she was asleep;
   2. Breach of trust – the defendant was the step-father of the victim. The defendant as step-father has violated his duties as a father of providing security and protection to the victim as his daughter;
   3. The offending was pre-meditated in that it took place at night when everyone (including the victim) were asleep;
   4. The number of times the defendant committed the offending upon the victim;
   5. Impact on the victim – it affected her schoolwork and education at the time.
8. The only mitigating factors are his early guilty pleas.
9. The Prosecution recommended a starting point of two years’ imprisonment as in the case of Police v Ah Ching.^[1] The main difference between that case and the present one is there was sexual connection with the genitalia of the victim by the defendant inserting his fingers inside the victim’s vagina in the Ah Ching case.
10. For each offending I will impose 18 months’ starting point less three months for being a first offender which leaves 15 months. For his early guilty pleas I will deduct 25% which is four months. This leaves 11 months.
11. The defendant is convicted and sentenced to 11 months’ imprisonment for each offending to be served concurrently. The term to less any time spent in custody.
    

JUSTICE TUATAGALOA

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^[1] Police v Ah Ching [2014] WSSC 17 (06 May 2014).