Police v Ah Ching [2018] WSSC 15 (2 February 2018)

SUPREME COURT OF SAMOA
Police v Ah Ching [2018] WSSC 15

Case name:	Police v Ah Ching
Citation:	[2018] WSSC 15
Decision date:	2 February 2018
Parties:	POLICE v MAMONA AH CHING male of Talimatau.
Hearing date(s):
File number(s):	S1031/17, S396/17, S397/17, S398/17, S2944/17, S1040/17
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE
On appeal from:
Order:	- Accordingly, for the charge of burglary on the 13th November 2016, you are convicted and sentenced to 2 years and 2 months imprisonment less time remanded in custody. For the remaining charge of burglary and three charges of indecent assault, you are convicted on each charge and sentenced to 12 months imprisonment on each, each sentence to be served concurrently to the lead sentence of 2 years and 2 months. This means that your sentence is 2 years and 2 months in total.
Representation:	F Ioane for prosecution Accused in person
Catchwords:	breaking into the victims’ homes, indecently assault, very frightening.
Words and phrases:	to denounce your conduct, deter you and others from committing the same or similar offending and to protect the community, Young girls and women are entitled to feel safe.
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

MAMONA AH CHING male of Talimatau.
Accused

Counsel:
F Ioane for prosecution
Accused in person

Sentence: 2 February 2018

S E N T E N C E

1. Mamona, you appear for sentence on one charge of burglary and indecent assault at Tuanaimato on the 13^th November 2016. You also appear for sentence on one charge of burglary and two charges of indecent assault at Talimatau on the 25^th December 2016.

THE OFFENDING:

2. According to the prosecution Summary of Facts that you have confirmed, on Sunday 13 November 2016 at around 2.00am, you entered the first victim’s home at Tuanaimato through the back window without authority. You went to the sleeping victim, touched her chest and towards her breasts on the outside of her clothes. You later touched her vagina outside of her clothes.
3. On the 25^th December 2016 at around 3.11a.m, you entered the home of the second victim at Talimatau. You removed the windows of the house and entered the second victim’s room where she was sleeping. You went to the second victim, sat on her and held her neck with your left hand. You placed your index finger in her mouth, you told her to remain quiet saying “aua ge’i e pisa I ke’i ua ou fasiokia oe, faakasi ai ma lou kama ma lou kuagage.” You later tried to forcibly kiss your second victim while you caressed her breasts. You attempted to touch her vagina, she slapped your hand but you proceeded to touching your second victim’s vagina.
4. When the second victim reached for her phone, you asked for her number. She gave you a wrong number and as you were entering the number in your phone, she pushed you away and ran off to get her father and brother.

THE ACCUSED:

5. You are a 28 year old man. According to your PSR dated 24 August 2017 for separate offending, you left school during year 11. You say that you were formerly married. You do not appear to have any children.
6. You are described by your pulenu’u as “o ia o se alii lelei tele, toafilemu ma e leo se tagata foi e tautala.” Your Bishop from the Church of the Latter Day Saints describes you as “o se ali’i tausi aiga i ona matua, e fa’amoemoe fo’i o le tina matua o lona aiga.”

THE VICTIMS:

7. There are three victims to your offending. The first victim is a 17 year old female of Tuanaimato who you indecently assaulted on the 13^th November 2016. She describes being scared of you at the time of your offending and she expressed to the Probation Service her disgust with you for your actions. She said that you would on occasion spend time there at their home with her cousins. She has forgiven you as her father has accepted your apology through your mother. Your mother has been to see them on a number of occasions to seek forgiveness.
8. The second victim is the victim of your second offending on the 25^th December 2016. She is now 20 years old. She spoke of her fear of you when you committed your offending and explained that she could not call out as a result of that fear. The next day, she left home and stayed with her grandmother because of her worry about you. She no longer thinks about the incident and no longer resides in Samoa. There does not appear to be any ongoing psychological effect of your offending on her.
9. The third victim is the home owner of the house you broke into on the 13^th November 2016. As a result of your mother seeing him on a number of occasions, he has forgiven you for your offending.
10. The aggravating features of your offending are as follows:
    • (i) Home invasion in the early hours of the morning while your victims were sleeping in their beds;
    • (ii) You threatened your second victim;
    • (iii) You committed your second offending on 25 December 2016 while you were on bail for your earlier offending on the 13^th November; and
    • (iv) Two victims of your offending on two separate occasions.
11. The mitigating factors personal to you are your prior good character, remorse and your guilty plea to the charges.

DISCUSSION:

12. Your offending is very serious because you broke into two separate homes on two separate occasions, the first on the 13^th November 2016 and the second on the 25^th December 2016. You then committed very similar offences on two females, aged 17 and 19.
13. Your breaking into the victims’ homes in the early hours of the morning to indecently assault them could only have been very frightening for them. For the second victim, you did so on Christmas morning. Young girls and women are entitled to feel safe, in particular within the security of their homes and in their beds as they sleep at night. For the second victim, you made a very serious threat.
14. Particularly aggravating is that after you were charged on the 3^rd of December 2016 with the indecent assault on the first victim, you were remanded in custody for approximately 2 weeks. You were then granted bail on strict bail conditions and released on the 19^th December 2016. Just 6 days later, on Christmas morning, you then broke in and assaulted your second victim. You had learnt nothing from your earlier dealing with the Courts and Police and certainly not such as to deter you from carrying out your further offending.
15. Prosecution seeks an imprisonment term with a start point of 5 years. I accept that in all the circumstances, an imprisonment term is warranted. This is to denounce your conduct, deter you and others from committing the same or similar offending and to protect the community. However, the start point of 5 years imprisonment submitted by prosecution is too high in the circumstances of this case.
16. Applying the totality in sentencing approach, I adopt the charge of burglary as the lead charge with a start point of sentence of 4 years imprisonment. I deduct 6 months for your prior good character and 6 months for your remorse. From the balance, I deduct 10 months for your guilty pleas.
17. Accordingly, for the charge of burglary on the 13^th November 2016, you are convicted and sentenced to 2 years and 2 months imprisonment less time remanded in custody. For the remaining charge of burglary and three charges of indecent assault, you are convicted on each charge and sentenced to 12 months imprisonment on each, each sentence to be served concurrently to the lead sentence of 2 years and 2 months. This means that your sentence is 2 years and 2 months in total.

JUSTICE CLARKE