Police v P.H [2019] WSSC 83 (20 September 2019)

IN THE SUPREME COURT OF SAMOA
Police v P.H [2019] WSSC 83

Case name:	Police v P.H
Citation:	[2019] WSSC 83
Decision date:	20 September 2019
Parties:	POLICE (Prosecution) and P.H (Defendant)
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 is sentenced to 2 years and 3 months’ imprisonment less time in custody.
Representation:	Ann Matalasi for Prosecution Tuala Ponifasio for Accused
Catchwords:	sexual connection – victim under 12 years of age – huge age disparity (60 years) – sentencing bands – custodial sentence
Words and phrases:
Legislation cited:	Crimes Act 2013 ss. 50; 58(1)
Cases cited:	Attorney General v Lua [2016] WSCA1 R v AM [2010] NZCA 114
Summary of decision:

NOTE: THERE IS A SUPPRESSION ORDER SUPPRESSING OR PROHIBITING THE PUBLICATION OF THE NAME OF THE VICTIM AND ANY DETAILS THAT MAY IDENTIFY HER

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

P.H male of AB

Accused

Counsel: Ann Matalasi for Prosecution
Tuala Ponifasio for Accused

Sentence: 20 September 2019

S E N T E N C E

1. The accused appears for sentence on one count of sexual connection with a girl under 12 years old^[1] on Tuesday, 04 June 2019. The penalty is maximum life imprisonment.^[2]
2. The summary of facts prepared by Prosecution was confirmed by the accused which the summary of facts basically says:
   • The accused and the victim are neighbours.
   • On Tuesday, 04 June 2019 at AB between 1.30-2.00pm the victim who is 5 years old went to the toilet that is situated separate from their house. The accused was said to be standing underneath a coconut tree on their land but near to where the toilet is. The young victim came outside the toilet and the accused called out to her to come over to where he was. The victim refused and the accused walked over, grabbed her by the hand and took her under the coconut tree where he was standing.
   • The accused then removed the victim’s shorts and panties, touched the victim’s genitalia then knelt down and licked the victim’s vagina.
   • The victim’s uncle saw the accused, walked over and punched the accused and reported the matter to Police.
3. He denies having done what he did in his pre-sentence report saying that he was outside picking up the rubbish when the young victim approached him and asked him to perform oral sex on her. I do not accept the accused version for the simple reason that I cannot believe that a five (5) year old could walk up to a man of his age (65) and ask him to perform oral sex on her. If indeed that was the case, the accused at his age of 65 years old should know better and should not comply with such a request from a five year old.
4. Some concern was raised in the pre-sentence report as to the mental status of the accused; this goes towards as to whether he was able to take a plea. The accused was referred to Dr Julia Ioane, a clinical psychologist, and to Dr George Tuitama of the Mental Health Unit at the National Hospital for assessment. Dr Tuitama in his mental assessment of the accused says that the accused understands the court proceedings and his rights. Dr Julia Ioane says in her assessment that he may be slow but he has clear understanding of his behaviour. What is clear from both assessments is that the accused knows what is right from wrong. That he understands what he did is wrong.
5. There is a reason why the law imposes a maximum life imprisonment for sexual offending against children less than 12 years old. It is for the protection and safety from such criminal behaviour.
6. The accused is said to be 65 years old and lives with his daughter and her family which includes her children. The accused could be a risk to any granddaughters he may have given what he has done to the young victim in the present case. This is more an opportunistic offending but his does not mean that the accused lacked premeditation. Their Honours in R v AM^[3] said that opportunistic offending shows a predatorial disposition on the part of the offenders. The accused has previous offending dating back to 1970 one of which is indecent assault committed in 2002 to which he served an imprisonment term. That was the last time he offended until now.
7. His daughter in the presentence report says that the accused is a good grandfather who has a strong relationship with her children. That may be so, but it is hard to believe that the daughter is referring to the same man given what he has done to young girl of 5 years old.
8. The prosecution recommends a custodial sentence with a starting point of 6 years according to the sentencing guidelines in Attorney General v Lua^[4] identifying aggravating factors. The age disparity of 60 years between the age of the accused and that of the young victim to be an aggravating factor. The bigger the age difference the more vulnerable the victim is. Even though, there was no collateral violence, the act itself is violent and that there is always the risk of a negative impact of such offending on young victims.
9. The victim in the victim impact report did not report any soreness experienced from what the accused did to her except to say that she was angry with the accused for what he did.
10. The defence recommends a starting point of 3 years if the Court considers a custodial sentence. The defence submissions say that the accused suffers from mental illness. I do not agree. I have referred to this in paragraph [4] herein.
11. The accused is 65 years old, a grandfather and has pleaded guilty to the offending despite his denial in the presentence report. As mentioned earlier the last time he offended was in 2002, some 17 years ago. However, I note that this last offending is one of indecent assault similar to the current sexual offending. I will not treat him as a first offender but I will consider the length of time he did not re-offend as a mitigating factor together with his age and early guilty plea.
12. The circumstances of this offending falls in the middle range of band one in Lua v Police.^[5]A 4 year starting point is appropriate. Less 12 months for the mitigating factors identified. A further 25% discount is given for the early guilty plea of 9 months. This leaves 27 months or 2 years + 3 months.
13. The accused is sentenced to 2 years and 3 months’ imprisonment less time in custody.
    

JUSTICE TUATAGALOA

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^[1] Crimes Act 2013, section 50.
^[2] Crimes Act 2013, section 58(1).
^[3] [2010] NZCA 114
^[4] [2016] WSCA 1 (19 Feb 2016)
^[5]Attorney General v Lua [2016] WSCA 1 (19 February 2016).