Police v Velo [2016] WSSC 54 (6 April 2016)

SUPREME COURT OF SAMOA
Police v Velo [2016] WSSC 54

Case name:	Police v Velo
Citation:	[2016] WSSC 54
Decision date:	6 April 2016
Parties:	POLICE v VAISAUA VELO male of Samatau and Pata, Falelatai.
Hearing date(s):
File number(s):	S3627/15, S3628/15
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:	- Convicted of both charges against him and given a suspended sentence of 18 months.
Representation:	M P Chang for prosecution P T Mulitalo for accused
Catchwords:	doing an indecent act on a child – common assault – maximum penalty – sentence – aggravating and mitigating features – suspended sentence
Words and phrases:
Legislation cited:	Crimes Act 2013, s.58 (3), s123
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NOs. S3627/15, S3628/15

BETWEEN

P O L I C E
Prosecution

A N D

VAISAUA VELO male of Samatau and Pata, Falelatai.
Accused

Counsel:
M P Chang for prosecution
P T Mulitalo for accused

Sentence: 6 April 2016

S E N T E N C E

The charges

1. The accused Vaisaua Velo is a 29 year old male of Samatau. He appears for sentence on one charge of doing an indecent act on a child, contrary to s.58 (3) of the Crimes Act 2013, which carries a maximum penalty of 14 years imprisonment. “Child” is defined under s.58 (6) to mean a person under the age of 12 years. The accused is also charged with common assault, contrary to s.123 of the Act, which carries a maximum penalty of one year imprisonment. To both charges, the accused entered an early guilty plea.

The offending

2. After a disputed facts hearing, I have decided to accept those facts of the prosecution’s summary of facts which were disputed by the defence. According to the summary of facts, at the material time, the accused was a primary school teacher and the two female victims were his students. The first victim is 10 years of age and the second victim is 11 years
3. On 4 November 2015 in the morning, the accused and the first victim were alone in the staff room of the school. The accused was making photocopies for the first victim to take back to the class. All of a sudden, the accused approached the first victim and hugged her. He then moved his hands down towards the first victim’s private part and touched her private part from outside her uniform. The victim closed her eyes out of fear and moved away from the accused. She then went back to her class room but did not tell anyone about what had happened to her. This incident is the subject of the indecent assault charge.
4. A short time later, the accused and the second victim went into the staff room to do some photocopying for the class. When another school teacher who was doing photocopies in the staff room left, the accused began a conversation with the second victim. As the accused was doing the photocopies, he approached the second victim from behind and rubbed her buttocks with his hands. The victim walked out of the staff room and went back to the class room. This incident is the subject of the common assault charge.
5. Later that morning, the second victim told the first victim what had happened to her in the staff room. The first victim then also told the second victim about what had happened to her in the same room. The following day, the second victim confided in other teachers what the accused had done to her and the first victim. The police were then notified by the school.
6. It appears that the first incident which is the subject of the indecent assault was of short duration. The accused’s actions also appear to have been on the spur of the moment. If there was any premeditation, it was at the low level. Minimal force was used. When the first victim moved away, the accused did not persist.
7. The second incident which is the subject of the common assault charge was also of short duration. If there was any premeditation, it was also at the low level but perhaps higher compared to the first incident. Very minimal force was used. When the victim moved away, the accused also did not persist.

The victims

8. As earlier mentioned, the first victim is 10 years of age and the second victim is 11 years. At the material times, they were students of the accused. The victim impact report on the first victim shows that this offending had no physical impact on her. But she was sad and scared when the incident occurred to her. She is now trying to put this incident behind her so that it does not affect the rest of her life. Her mother is angry and upset as she had thought school was a safe place for her daughter as a student.
9. The victim impact report on the second victim shows that this offending had no physical impact on her. But she was scared when the accused rubbed her buttocks with his hands. After what happened to her, she continued to be scared when she goes to school even though the accused was no longer there as he had been suspended. After counselling and support from other teachers of her school and her parents, she is now able to cope with the effect of what had happened to her and she looks forward again to going to school.
10. It therefore appears from the victim impact reports that the offending had no physical impact on the victims and, fortunately, its psychological impact on the victims was not long lasting.

The accused

11. The accused, as shown from his pre-sentence report, grew up under the guidance of his parents. At the age of 15 when his father died and his mother remarried, he moved in to the family of a friend and his mother. He has since regarded his friend’s mother as his guardian. After completing primary and secondary school, he enrolled as a student in the faculty of education at the National University of Samoa where he graduated with a diploma in teaching. In 2014, he started work as a teacher at the primary school where the present offending took place in November 2015. He is now married and his wife is also a school teacher.
12. The character testimonial given by the accused’s guardian to the probation service shows the accused as an obedient, honest and hardworking person who strives hard for the betterment of his family. He is also a regular churchgoer and he renders service to his village council. The character testimonial from the accused’s pastor shows the accused as a well behaved and well liked member of his church. It is said that the accused’s offending is out of character. The character testimonial from the pulenuu of the accused’s village also shows the accused as a well behaved and well liked person within his village. He also serves the village council well and has never breached any village regulation. He is also a person who does not drink or smoke. The character testimonial from the principal of the school where the accused was teaching shows the accused as an obedient, respectful, honest and hard working teacher who always strived to achieve high standards for the school. Under the accused’s organisation and leadership, his school won the first prize for having the best flag in the national primary school competition that was held during the special literary week for all the primary schools in the country.
13. The accused and his family have also apologised to the families of the victims and presented to each family with a large fine mat and $200 cash. Both families accepted the apologies and this matter has been reconciled between the accused and the victims’ families. When the council of the village asked the accused to provide something to the village council as a pardon, he provided 10 cartons of canned fish and $300 each. The accused is also a first offender.

The aggravating and mitigating features

14. The main aggravating feature of this offending is the breach by the accused of the victims trust in him as their teacher as well as the trust of the victims parents that their children would be safe at the school. It is essential that this trust between students and their teachers and between the parents of the students and the teachers of their children should be maintained. Students rightly expect to be safe at school and so are the parents of the students. Sexual misconduct by a teacher towards a student will undermine that trust and the good image of a school.
15. Another aggravating feature of this type of offending is the impact of the offending on the victim. Even though there was no physical impact on any of the victims, there was some psychological impact though of relatively short duration. The psychological impact of the offending on the victims parents is also to be taken into account.
16. The age difference of 19 and 18 years respectively between the accused and the victims is also an aggravating feature of this offending. Of these aggravating features, breach of trust carries the most weight in this case.
17. On the other hand, the gravity of this offending is at the low end of the scale. The assaults were of short duration. Minimal force was used. When the victims moved away from the accused, he did not persist. Any premeditation would also be at the low level. The psychological impact of the offending on both victims was of relatively short duration and towards the low end of the scale.

Discussion

18. In his extensive, well prepared, and well argued submissions, defence counsel seeks as a sentencing option a discharge without conviction under s.104 of the Criminal Procedure ct 1972. I have given careful consideration to counsel’s submissions. However, I have found that a discharge without conviction would not be appropriate in this case. Even though this offending is towards the low end of the scale, the offending is not of a trifling nature that it is inexpedient to inflict any punishment. Deterrence is also an important element in passing sentence in this type of case. I am also of the opinion that the personal circumstances of the accused do not amount to “special circumstances of the offender” within s.104 (1) (b) of the Act. Misconduct of a criminal nature by an employee, especially one in a position of trust, in the course of his employment would normally result in a conviction and termination of employment. Normally, that will result in some hardship to the accused and his family as well. However, I do not find such hardship to the accused or his family to be out of all propositions having regard to the particular circumstances of this offending. Protection of school children from teachers like the accused is a very important consideration.
19. Having said all that, I have decided, having regard to the aggravating and mitigating features of the offending, as well as the mitigating features personal to the accused as offender not to impose a custodial sentence.

Result

20. The accused is convicted of both charges against him and given a suspended sentence of 18 months.
    

CHIEF JUSTICE