Police v Laki [2018] WSSC 65 (3 May 2018)

SUPREME COURT OF SAMOA
Police v Laki [2018] WSSC 65

Case name:	Police v Laki
Citation:	[2018] WSSC 65
Decision date:	03 May 2018
Parties:	POLICE (Prosecution) AND ALEKI LAKI male. (Defendant)
Hearing date(s):	-
File number(s):	S373/16, S374/16, S375/16, S304/16
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	Usual suppression order will issue prohibiting publication of details of the victims including the place of the offending. On the charges in relation to Victim A, you will be convicted and ordered to serve 3 years in prison each charge but terms concurrent. On the one charge concerning Victim B, I adopt a start point of 3 years in prison and after deduction for mitigating factors an end sentence of 18 months is reached. On that charge you will be convicted and sentenced to 18 months in prison also to be served concurrent to the other term. End result is you will serve 3 years in prison for this matter. Any time spent in custody is to be deducted.
Representation:	L Mamaia for prosecution D Roma for defendant
Catchwords:	unlawful sexual connection with a dependant family member - suppression order – penetrated digitally - sexual intercourse – forcefully - protection of young and vulnerable females - pre-meditation - high start point - opportunistic in nature – reconciliation - true remorse - mitigating factors - 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:

ALEKI LAKI male.
Defendant

Counsel:
L Mamaia for prosecution
D Roma for defendant

Sentence: 03 May 2018

SENTENCE

1. The defendant has pleaded guilty to four (4) counts of unlawful sexual connection with a dependant family member under 21 years of age. Two girls are involved in this matter, both were at the time living with the defendant and his wife. Usual suppression order will issue prohibiting publication of details of the victims including the place of the offending.
2. The unchallenged police summary of facts says that in relation to the primary victim whom I will call Victim A between 01 October and 10 October 2015 while she was asleep with her cousins in the living room of the defendants house, the defendant approached her late at night. He touched her legs and breasts, got on top of her, sucked her breasts, removed her panty and penetrated her digitally. The victim tried to push him away but the defendant was too strong. He parted her legs and inserted his penis into her vagina. The victim felt pain in her genitals as this was the first time she has had sexual intercourse. She was not successful in efforts to push the defendant away. When he was finished he got off her and left.
3. The summary goes on to relate two other incidents involving the defendant and Victim A. The next one occurred between 01 November and 30 November 2015 again late at night while the victim was sleeping in the family house. He undressed the victim, forcefully parted her legs and had sexual intercourse with her.
4. The third incident occurred between 01 December and 31 December 2015 again late at night and while the victim was sleeping.
5. The matter involving the second victim which I refer to as Victim B occurred on a different date in December. This time on Sunday 20^th December at about 7:00 p.m. in the evening. At that time the victim was walking from her house on an inland road and met the defendant. He asked her where she had gone and she said she went to get some clothes. The defendant then said to her “a’o se kisi foi alu ai.” The victim responded if he was not satisfied with her aunty whom he was married to.
6. The summary relates the defendant then went and sat on a coconut tree trunk and called the victim over. The victim went over, sat on his lap and he started kissing her. He sucked her breasts, removed her short and panty and fondled her private part. He removed his shorts, got on top of the victim and had sexual intercourse with her. Afterwards the defendant dropped the victim off to where she was headed. She later returned to the defendants house.
7. The matter came to light and was reported to the police around February 2016. Following the investigation the defendant was charged and initially entered not guilty pleas to the charges. Subsequently he changed plea to guilty when the matter came on for trial in April of this year. File also shows there was a period where a warrant was issued for the defendants non-appearance and this probably accounts for the delay in dealing with this matter which dates back to 2015.
8. The purposes and principles of sentencing that apply to this case are firstly that the sentence should hold the defendant accountable for the harm he has done. Also to promote in him responsibility and acknowledgment of the harm he has caused. And to denounce the conduct that he engaged in with these young girls living in his family. The sentence should also deter the defendant from doing this again in the future and send a message to all males regarding young females living as part of their family and under their care.
9. The maximum penalty for each count the defendant has pleaded guilty to is 14 years in prison. Based on the facts and circumstances of this matter the prosecution have asked that sentence start at 5 years in prison. They point to the aggravating factors which includes a significant breach of trust. The defendant was a father figure to these girls, his position did not justify his using them as sexual play things. Girls were both young and vulnerable and were subjected to advances by a man twice their age under whose care and protection they were living. The offending has had significant impact on the victims. In their Victim Impact Reports for example Victim B talks about how the memory of this still affects her relationship with her husband. Victim B is now married.
10. Victim A’s Victim Impact Report talks about how she lost her virginity to the defendant and how she felt relief when the police investigation resulted in charges against him so that this behaviour against her could stop. She still feels shame and embarrassment when she thinks about what happened. Both girls expressed disappointment that no personal apology was made to either of them by the defendant only the family to family reconciliation. It is also notable that in relation to Victim A there was some pre-meditation involved in the offending. Because this happened at night when the rest of the family had gone to sleep.
11. This is serious offending, young girls under the care of older male relatives are entitled to feel safe and protected. Not only from external forces but from harm from within by family members. This kind of predatory behaviour is sadly becoming common in our country and it must stop. Offenders must understand that the price for such behaviour is most likely imprisonment for the protection of young and vulnerable females in every family in our country. I accept the prosecution recommendation a high start point for sentencing should be adopted.
12. The cases of these two young girls are not alike. In relation to Victim B, it was only one off offending and was opportunistic in nature. In that the defendant saw an opportunity and took it. For Victim A it was multiple offending over a greater period of time. The circumstances in relation to her are also more aggravating in that the offences were committed at night in the family home.
13. I will take different approaches to each offending. In respect of the matter involving Victim A which carries a maximum penalty of 14 years I will start sentencing at half the maximum penalty namely 7 years. As your counsel has pointed out there are factors in your favour and the start point must be adjusted to reflect those factors. The first is for the good background of service you have rendered to your family as outlined in the pre-sentence report. Supported by references from your faifeau and pulenuu. It is also clear you are a first offender. To reflect those factors I deduct 6 months.
14. There has been a family reconciliation, a gathering was held where you knelt and apologised to the aiga. An indication of your true remorse for what you did. For those matters I will deduct a further 6 months, that leaves a balance of 6 years in prison.
15. A substantial and appropriate penalty was imposed on you by the village council. That has been fully satisfied. I deduct 1 year for that, leaving a balance of 5 years.
16. For your guilty plea, that is also worthy of a significant deduction for the reason that it has saved the court its valuable time and limited resources. And most importantly it has spared the young girls having to come to court and talk about these things. For that I will deduct a period of 2 years from the balance of sentence, leaves 3 years in prison.
17. No further adjustment needs to be made to your balance of sentence. On the charges in relation to Victim A, you will be convicted and ordered to serve 3 years in prison each charge but terms concurrent.
18. On the one charge concerning Victim B, I adopt a start point of 3 years in prison and after deduction for mitigating factors an end sentence of 18 months is reached. On that charge you will be convicted and sentenced to 18 months in prison also to be served concurrent to the other term.
19. End result is you will serve 3 years in prison for this matter. Any time spent in custody is to be deducted.
    

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JUSTICE NELSON