Police v Pesamino [2019] WSSC 75 (10 May 2019)

IN THE SUPREME COURT OF SAMOA
Police v Pesamino [2019] WSSC 75

Case name:	Police v Pesamino
Citation:	[2019] WSSC 75
Decision date:	10 May 2019
Parties:	POLICE (Informant) and TOMA TIPI PESAMINO, male of Mulivai Safata (Acccused)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Mata Keli Tuatagaloa
On appeal from:
Order:	The accused on each count is convicted and sentenced to 16 months’ imprisonment to be served concurrently; less any time in custody to await sentencing.
Representation:	A. Matalasi for Prosecution Accused appears unrepresented
Catchwords:	indecent act – accused intoxicated – first offender – age disparity (33 years) – familial relation – custodial sentence
Words and phrases:
Legislation cited:	Crimes Act 2013 ss. 58(3); 60
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

TOMA TIPI PESAMINO, male of Mulivai, Safata
Accused

Counsel:
A. Matalasi for Prosecution
Accused appears unrepresented

Date: 10 May 2019

S E N T E N C E

1. The accused was 44 years’ old from Mulivai Safata at the time of the offending. The victim is his 12 year old niece. At the time of the offending the niece was below 12 years of age.^[1]
2. The offending took place at home on 20 October 2018. The accused who (from the PSR) was said to be heavily intoxicated and approached the victim where she was sleeping and touched her on her genitalia from outside her shorts and then touched her breasts.^[2] The victim woke up when the accused caressed her breasts and the accused then walked away.
3. The accused is to be sentenced on three charges of indecent act. These three acts were all done at the one time and therefore part of one continuous action. That is, the Prosecution from their summary of facts^[3] say that the accused started feeling or touching the victim from her legs, to her genitalia, to her breasts.
4. The charge relating to touching the victim’s legs on its own would be more indecent assault under s. 60 of the Crimes Act 2013 than that under of an indecent act under s. 58(3). However, because the touching of the legs is all part of one continuous action that led to the touching of the victim’s genitalia and breasts, it would then be an indecent act under s. 58(3).
5. The victim says that she did not suffer or sustain any injuries. She reported being very angry with the accused and ashamed if people knew of what had happened. She says that the matter was discussed within the family with the accused, herself, her father (accused’s brother), the accused sister and father where the accused apologized.
6. The accused owned up to what he did in his pre-sentence report and said to have expressed feelings of remorse and guilt over his actions. He also blamed his highly intoxicated state at the time. His intoxication is not an excuse for what he did.
7. The accused is a first offender, lives and renders ‘tautua’ or service to his family.
8. The Prosecution refers the Court to previous sentencings whereby the Court has imposed custodial sentences on similar charges. The circumstances of the cases Prosecution referred to are different from the present case. This accused must be sentenced according to the circumstances of his offending.
9. The most serious factor of his offending is his familial relationship to the victim; his age compared to that of the victim where the age disparity is 33 years and shows the vulnerability of the victim.
10. In the circumstances of this offending a 2 ½ year or 30 month starting point is appropriate; less 10 months for his first offender status. I believe that he is truly remorseful for his behaviour and this I will less a further 2 months. His change of plea at a later stage entitles him to a discount of 10% and not the usual 25% I give to those with early guilty pleas. His change of plea has saved the Court’s time and most importantly spared the young victim or his own niece having to go through the ordeal of giving evidence. The 10% discount amounts to 2 months; this leaves 16 months.
11. The accused on each count is convicted and sentenced to 16 months’ imprisonment to be served concurrently; less any time in custody to await sentencing.

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^[1] Victim was born on 08 December 2006.
^[2] Victim impact report.
^[3] Summary of facts paragraph [6].