Police v Malaki [2016] WSSC 196 (4 November 2016)

IN THE SUPREME COURT OF SAMOA
Police v Malaki [2016] WSSC 196

Case name:	Police v Malaki
Citation:	[2016] WSSC 196
Decision date:	04 November 2016
Parties:	POLICE (Informant) and SAVILI MALAKI, male of Tanumapua and Siumu (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:
Representation:	V Afoa for the Prosecution M V Peteru for the Defendant
Catchwords:	Sexual connection with a minor – defendant and victim related through marriage – unlawful sexual connection – sentencing bands – first offender – custodial sentence
Words and phrases:
Legislation cited:	Crimes Act 2013 ss. 50(b) & 58(1)
Cases cited:	R v AM [2010] NZCA 114; [2010] 2 NZLR 750
	Key v Police [2013] WSCA 3 (28 June 2013) Attorney General v Lua [2016] WSCA 1 (19 February 2016)
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

SAVILI MALAKI, male of Tanumapua & Siumu
Defendant

Counsel:
V Afoa for Prosecution
M V Peteru for the Defendant

Sentence: 04 November 2016

SENTENCING OF TUATAGALOA J

1. The defendant is charged with one count of sexual connection under ss. 50(b) & 58(1) of the Crimes Act. This is sexual connection with a girl under 12 years old.
2. The sexual connection is the defendant rubbed his penis on the victim’s vagina. This falls under s. 50(b) which is,

“Connection between the mouth or tongue or any part of the body of any person and any part of the genitalia or anus of any other person.” The offence is skin to skin.

3. The offending is said to have taken place at Tanumapua on or between 01 January 2014 and 23 April 2015. The offending carries the maximum penalty of life imprisonment.
4. The defendant is the uncle-in-law of the victim, that is, the defendant is the husband of the victim’s mother’s sister. They live on the same land but in different households. The victim was 10 years’ old at the time.

The facts:

5. The summary of facts has been read out and accepted by the defendant.
6. The summary of facts says at paragraph [3] that the defendant pulled the victim to him and undressed her. He then pulled down his pants and placed his penis on the victim’s vagina and rubbed it against the victim’s vagina. The defendant covered the victim’s mouth with his hand.

The aggravating factors:

7. The age disparity of 12 years between the defendant who was 22 years’ old at the time and the victim who was 10 years’ old reflects the vulnerability of the victim. The bigger the age difference the more serious the offending is and the more culpable the defendant is.
8. The relationship between the defendant and the victim of uncle-in-law and niece indicates the existence of a ‘trust’ which is breached by the defendant.
9. There was violence associated with the offending. The defendant pulling the victim to him and undressing her is an act of violence. The defendant placing or covering the victim’s mouth with his hand is an act of violence.
10. Counsel for the defendant submitted that the offending was opportunistic. However, the court in R v AM^[1] at [35] say:

“...offenders who show predatory sexual behavior may be more likely to offend in an opportunistic manner. They should not be treated as lacking premeditation.”

Mitigating factors:

11. The victim’s mother confirmed to Probation that the matter has been reconciled and settled within their family and they have asked for the matter to be withdrawn.
12. The defendant did not plead guilty earlier nevertheless changed his plea to ‘guilty’ on the day of the hearing when prosecution withdrew two other charges against the defendant. This has saved the victim who is very young from giving evidence. The defendant will be given 25% discount in sentencing.
13. The victim impact report says there were no injuries sustained by the victim. The victim appeared normal and well mannered which suggests that the victim was not psychologically affected.
14. The defendant is a first offender. This suggests that the defendant is of previous good character prior to the offending. There are no reports by the prosecution that the defendant is other than of being a good obedient citizen prior to the offending. The court in Key v Police^[2]at [84] say:

“The fact that a convicted person is a first offender is not a mitigating factor. At most it is neutral. Previous convictions are aggravating factors. Previous good behaviors is, of course, a relevant factor.”

Discussion:

15. The law is designed to protect young girls from such predatory behaviour. Most of the sexual offending against young girls happens in the environment where it is supposedly a safe haven for them. The offenders are usually someone they know very well if not related to.
16. The case of AG v Lua^[3] provides the bands for unlawful sexual connection where there is no penetration against girls under 12 years’ old.
    • (i) Band one (2 – 6 years): Appropriate where the offending is at the lower end of the spectrum and there is an absence of aggravating features or their presence is limited.
    • (ii) Band two (5 – 12 years): Where the offending is of moderate seriousness and involves two or three aggravating features.
    • (iii) Band three (11 years – imprisonment): Where the offending is the most serious of this kind, for example it involves offending that is against multiple victims over a significant period in the presence of serious aggravating features.
17. The circumstances of this offending falls in the top end of Band one at 4 years starting point; less 12 months for being a first offender; less 6 months for reconciliation; less 25% for change of plea of 8 months which leaves 22 months or one year and 10 months.
18. The defendant is convicted and sentenced to 22 months’ imprisonment.
    

JUSTICE TUATAGALOA

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^[1] R v AM [2010] 2 NZLR 750
^[2] Key v Police [2013] WSCA 3 (28 June 2013)
^[3] Attorney General v Lua [2016] WSCA 1 (19 February 2016)