Police v Seve [2018] WSSC 110 (1 November 2018)

SUPREME COURT OF SAMOA
Police v Seve [2018] WSSC 110

Case name:	Police v Seve
Citation:	[2018] WSSC 110
Decision date:	01 November 2018
Parties:	POLICE (Prosecution) AND LOGOIMAMAO SENIFILI SEVE male of Fagalii-uta and Satalo Falealili. (Defendant)
Hearing date(s):	02 & 16 July 2018
File number(s):	S57/18, S65/18
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	On the charge of unlawful sexual connection convicted and sentenced to eighteen (18) months in prison. On the second charge of indecent act convicted and sentenced to six (6) months in prison, concurrent term. Any time spent in custody in relation to this matter to be deducted from your eighteen (18) months term.
Representation:	Q Sauaga for prosecution I Sapolu for defendant
Catchwords:	unlawful sexual connection – found guilty – suppressing order – performing indecent act – sexually assaulted – fondling breasts and private part – consent – medical examination – abrasions – age difference – vulnerability of the victim – sentencing bands for sexual connection with children under twelve years of age – maximum penalty – mitigating factors – reconciliations – lack of remorse – convicted and sentenced – imprisonment.
Words and phrases:
Legislation cited:
Cases cited:	Attorney General v Lua [2016] WSCA 1
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

LOGOIMAMAO SENIFILI SEVE male of Fagalii-uta and Satalo Falealili.

Defendant

Counsel:
Q Sauaga for prosecution
I Sapolu for defendant

Hearing: 02 & 16 July 2018

Ruling: 27 August 2018

Sentence: 01 November 2018

S E N T E N C E

1. After a defended hearing the defendant was found guilty that at Fagalii-uta on Saturday, 07 October 2017 he had unlawful sexual connection with the complainant, a girl under 16 years of age. The complainant was then 12 years old and a neighbour of the 60-year-old defendant. Pursuant to the normal procedure of the court an order suppressing publication of the complainants details or anything that may serve to identify her including publication on any form of social media is made permanent. The defendant was also found guilty of performing an indecent act on the complainant at the same date same place. The reasons for that ruling are contained in a written decision dated 27 August 2018.
2. The essential facts are that the complainant was sent by her mother to the rear of their family property to fetch a “lapalapa.” There she encountered the defendant who sexually assaulted her by fondling her breasts and private part. The defendants acts were disturbed by the complainants uncle who after some time had elapsed had been sent to look for the complainant. His trial evidence was according to what he saw it appeared the young girl was consenting to what the defendant was doing. Consent however is no defence by law to this kind of offending and it is questionable how far a twelve (12) year old is capable of consenting to such actions by the older more experienced defendant who has children of his own.
3. A medical examination later that day found abrasions on the inside of the complainants private part consistent with a sexual assault. The two offences the defendant has been found guilty of carry substantial imprisonment maximums, ten (10) years for unlawful sexual connection, seven (7) years for indecent act.
4. The courts position in relation to such offending by mature male adults on young females should by now be well-known to all, it is no secret. It is invariably a pathway to prison. There is no question a penalty of imprisonment is necessary in this case considering the very young age of the victim, the age difference between the victim and the defendant, the special vulnerability of the victim who was alone in a bushy area at the rear of the family property on an errand for her mother. And the need for the court to continue to issue imprisonment penalties in appropriate cases. Weighed against that is the suggestion that some if not all the acts were consensual as testified to by the complainants uncle.
5. Defence counsel has properly conceded to the prosecution submission that an imprisonment penalty is required. But the court does not accept counsels agreed start point of twelve (12) months imprisonment. Considering the girls very young age of twelve (12) years and the observations of the Court of Appeal in Attorney General v Lua [2016] WSCA 1 which established sentencing bands for sexual connection with children under twelve (12) years of age, in particular that low level offending falls within Band-one of two (2) to six (6) years in prison. Plus giving due weight to the fact as noted by the Court of Appeal in Lua that Parliament has spoken and increased a few years ago the maximum penalty for this kind of offending from seven (7) years to ten (10) years.
6. I also make due allowance for the fact that sexual connection carries a ten (10) year maximum penalty as opposed to life imprisonment if the child were under twelve (12) years of age. In this particular case the child falls on the cusp between Lua and the situation of girls between twelve (12) and sixteen (16) years of age. And being twelve (12) she is at the lowest end of that spectrum.
7. Considering all these factors the court will instead adopt a two (2) year start point for sentence. In relation to factors in your favour Logo or mitigating factors the only adjustment that needs to be made to that start point is to take account of your clean record and good character and background. This is outlined in the pre-sentence report and the references attached thereto from your faifeau and pulenuu. I give you the normal deduction of six (6) months in recognition of that, leaves a balance of eighteen (18) months in prison.
8. There has been no apology or reconciliation as noted in the pre-sentence report and your electing to send this matter to trial means you cannot be given the benefit of the guilty plea. It also demonstrates your lack of remorse as reinforced by your continued protests of innocence to the probation office recorded by them in the pre-sentence report. There are therefore no other factors in mitigation that require an adjustment to your sentence.
9. On the charge of unlawful sexual connection convicted and sentenced to eighteen (18) months in prison.
10. On the second charge of indecent act convicted and sentenced to six (6) months in prison, concurrent term. Any time spent in custody in relation to this matter to be deducted from your eighteen (18) months term.
    

_____________________
JUSTICE NELSON