Police v K [2017] WSSC 74 (10 May 2017)

SUPREME COURT OF SAMOA
Police v K [2017] WSSC 74

Case name:	Police v K
Citation:	[2017] WSSC 74
Decision date:	10 May 2017
Parties:	POLICE (Prosecution) and K, male defendant (First Defendant) and F female defendant (Second Defendant)
Hearing date(s):	19 and 20 April 2017
File number(s):	S3707/15, S3762/15, S3763/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:
Representation:	F Ioane for prosecution C Vaai for first defendant D Roma for second defendant
Catchwords:	Attempted sexual violation – indecent act – found guilty – aiding – imprisonment – abduction – denounce conduct – accountable – mitigation – clean record – first offender – convicted and sentenced -
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

K, male defendant.
First Defendant

AND:

F, female defendant.
Second Defendant

Counsel:
F Ioane for prosecution
C Vaai for first defendant
D Roma for second defendant

Hearing: 19 and 20 April 2017

Submissions: 01 May 2017

Decision: 04 May 2017

Sentence: 10 May 2017

S E N T E N C E

1. After a defended hearing the defendant K was found guilty of attempting to sexually violate the then 15 year old complainant at her home on a date just prior to Lotu Tamaiti in 2014. The defendant was also found guilty of committing an indecent act on the complainant as part and parcel of said attempted sexual violation. His co-defendant is the complainants biological mother and she was found guilty of aiding K to commit an indecent act on the complainant.
2. To protect the identity of the complainant the names of all the parties and witnesses have been permanently suppressed from publication; likewise the complainants village and any other details that may serve to identify her. This includes suppression of publication on any form of social media.
3. The trial evidence established that K is not from the complainants village but a neighbouring one. He attends church in the complainants village. He said that is how he came to know the complainant and her mother who are members of the church congregation. He also knew the complainant from gatherings and sports activities of the “autalavou”. Also said in his sworn evidence that he formed a relationship or “faigauo” with her over a period of some six (6) weeks prior to the offending. Something that was strenuously denied by the complainant and something that the evidence at trial did not establish.
4. I found no evidence of such a relationship but there was evidence the mother encouraged the complainant to form a relationship with K. Thus when K visited the complainants house on the night of the incident, the mother woke up the complainant who was asleep in her mosquito net with her younger sister. From the courts decision dated 04 May 2017 at pages 3 and page 4 where the complainant talks about being awoken by her mother and being told to sit next to K on the chair at the table:

“The complainants evidence was that late one night before Lotu Tamaiti 2014 when she was still 15 years of age, she was sleeping with her sister P in their mosquito net at their house. She was awoken by her mother “fai mai oute sau i le feau a le tamaloa lea o K.” She obeyed and on page 5 of her evidence she says:

“Sa ou sau lae saofai K i le nofoa. Sa ou sau ou saofai ile nofoa lava lea e nofo ai K, ae fai mai lou tina ou te soso i autafa o K. Sa ou faapea poo le a le nei mea o le a tupu i le po nei............

Fesili Na e soso i autafa o K ona a laia?

Tali Ae fai mai le tala o lo’u tina ia maua ma K ma te o i tua i le fale‘ai.

Fesili Ona a laia?

Tali Na ou muamua i tua i le fale ‘ai a o le taimi na lae talanoa K ma lou tina i luma.

Fesili E te iloa poo le a le mafuaaga ua ala ai na fai atu lua te o i tua i le fale‘ai i le taimi na, na e iloa?

Tali E leai.

Tali E le’i umi na talanoa lou tina ma K ae alu atu loa K i le mea o loo ou iai.”

5. She related how K came and kissed her on the lips and forcibly removed her tank-top and bra, breaking her bra staps in the process. From her evidence on page 5 of the decision she says:

“Tali Na nofo ‘ai o’u susu a o le taimi lea la ou te tagi ma valaau atu i lo’u tina.

Fesili Ia?

Tali Na valaau atu i lo’u tina ou te ofo i lona le alofa o a’u o lona tama ae le ago mai lava lou tina ia te a’u.

Fesili E te valaau atu la o e iloa atu lou tina?

Tali Ou te tilotilo atu lava o lae saofai i luga o le nofoa ma omiomi lona telefoni.

Fesili Le taimi la lea e te valaau i lou tina o a gaioiga o K o loo fai?

Tali O lea e ‘ai o’u susu ma taumafai e tatala lo’u ofuae.”

6. The complainant went on to relay how eventually the mother responded to her calls and came and told K “ua lava lea” and escorted him out of the house.
7. The complainants younger sister confirmed that the complainant was crying and in a distressed condition when she returned to the mosquito net. And the fact that she was no longer wearing a tank-top and shorts but a “sulu-aoao.”
8. The offences that the defendants have been found guilty of are serious. Attempted sexual violation is the modern equivalent of attempted rape, it carries a maximum penalty of 14 years imprisonment. Committing an indecent act on a person less than 16 years of age carries a 7 year maximum penalty. Aiding someone to commit such indecent act similarly carries a 7 year maximum penalty.
9. I deal firstly with K who faces the more serious charges. His attempted sexual violation was committed on a 15 year old female. He saw nothing inappropriate in trying to establish a relationship with a female this young even though he was over 40 years of age. He is in a minority of one if he saw nothing wrong in doing that. And no doubt every right thinking member of our community would instantly frown upon and probably condemn such a relationship. To go further and try to sexually violate the girl crosses the legal line and renders him liable to 14 years in jail. No doubt in my mind in accordance with established sentencing principles an imprisonment penalty is required. To denounce his conduct, to hold him accountable, to send a message to him personally and to all men that this kind of behaviour is totally unacceptable.
10. A review of the cases show that the usual start point for this kind of offending is around 7 years in prison. But those cases involve significantly more force and an element of abduction of the complainant. There is also no evidence here of any physical injuries sustained by the complainant. The matter was not reported to the police until some months later.
11. This seems to me to be a case of seduction gone wrong. An older mature male trying to enter into a relationship with a 15 year old girl and when his attempts to seduce her were rejected he tried to force his attentions onto her. I agree with his counsel K went too far.
12. In the circumstances of your case K, I will start sentencing at 5 years in prison. I upgrade that by 6 months to reflect that the girl was under 16 years of age, she was 15, and her vulnerability because she was acting in obedience to her mother to go with you to the “fale’ai”. I further upgrade the start point by one (1) year because of the significant age difference between the two of you. Sentencing therefore starts at 6½ years in prison.
13. In mitigation I accept what your lawyer has stated that you have a clean record, you are a first offender. You have a reasonable but not remarkable pre-sentence report and I accept that a reconciliation in this kind of situation is impossible since the girls are now in the care of the Samoa Victim Support Group. However there is no record any efforts were made in that regard by you or your family. Nevertheless, I will give you full credit for your background, I deduct 6 months from your start sentence, leaves 6 years in prison.
14. Your counsel has looked for other mitigation factors in your favour so have I. Although he said this morning that you are remorseful, what you told the probation office was different and you did defend these allegations. I therefore cannot give you credit for that.
15. There are no other factors that in my view need to be accounted for in your sentence. On the offence of attempted sexual violation you are convicted and sentenced to 6 years in prison.
16. On the other offence of committing an indecent act, there are many acts to choose from: kissing, undressing of the complainant, sucking her breasts and trying to remove her pants all without her consent. I consider the totality of your conduct warrants a sentence taking account of all those actions, convicted and sentenced to 2 years in prison. But that term is to be served concurrent to the above.
17. O lona uiga o le fa’asalaga mo mataupu ia e lua mo lau susuga K e 6 tausaga e tuli i le falepuipui e fai ma ou fa’asalaga.
18. In respect of your co-defendant, your actions madam are shameful. You attempted to hook up your 15 year old daughter to a man almost three times her age. There is some suggestion you did this for money. You are fortunate the evidence in that regard was not entirely clear. I therefore give you the benefit of the doubt and consider that what you did was ill-advised and un-parental. But in addition to that F, your allowing the co-defendant into your house late at night, and then requiring your daughter according to her evidence because you elected not to testify, to go into the “fale’ai” with K away from the light means you were aiding K in his endeavours. I have no doubt K would not have been inside your house in the first place without your permission and explicit approval.
19. I consider your culpability equal to if not greater than Ks because you are the girls mother. Taking all circumstances into consideration however including the charge against you of aiding Ks indecent act and the factors in your favour referred to by your counsel and contained in the pre-sentence report, it would in my view be unjust and unfair to sentence you to a higher penalty than Ks sentence for actually committing the indecent act.
20. Accordingly, for aiding in Ks commission of the indecent act, you will be convicted and sentenced to 2 years in prison. Any time that the defendants have spent in custody awaiting resolution of this matter is to be deducted from those terms. That would apply to both of them Ms Sio.
    

JUSTICE NELSON