Police v P.V [2020] WSSC 26 (21 February 2020)

IN THE SUPREME COURT OF SAMOA
Police v P.V. [2020] WSSC 26

Case name:	Police v P.V.
Citation:	[2020] WSSC 26
Decision date:	21 February 2020
Parties:	POLICE (Informant) and P.V. male of Lotofaga, Aleipata (Accused)
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 18 months’ imprisonment. Less any time in custody.
Representation:	V Faasii & M Alai for Prosecution J Brunt for the Accused
Catchwords:	sexual conduct with child under 12 years; sexual connection; custodial sentence; vulnerable victim; huge age disparity; opportunistic offending; first offender; remorseful.
Words and phrases:	accused and victim related by marriage; accused banished from village where offending happened; offence happened 6-7 years yesterday
Legislation cited:	Crimes Act 2013, ss. 50; 58(1);
Cases cited:	Attorney General v Lua [2016] WSCA 1 (19 February 2016).
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.V. male of Lotofaga, Aleipata

Accused

Counsel: V Faasii & M Alai for Prosecution
J Brunt for the Accused

Sentence: 21 February 2020

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 or between the 31^st December 2013 and 1^st January 2015. 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 related by marriage. The accused is the husband of the sister of the young victim’s mother. The victim was 10 years old at the time of the offending.
   • On or between 31^st December 2013 and 1^st January 2015, the young victim was watching television at her uncle’s house across from where she lives. It was somewhere around the afternoon when the accused also got to the uncle’s house and watched television with the victim.
   • According to the summary of facts, after watching the program that was on the television the victim walked past the accused who was sitting near the doorway to leave and the accused took hold of her hand and told her to take off her shorts and panties.
   • The accused proceeded to remove the victim’s shorts and panties, lay her in front of him and licked the victim’s vagina.
   • One of the neighbour’s came by and caught the accused in the act but this matter was not reported at the time; it was not until a similar incident involving one of the in-laws many years later that this matter was brought to light.
3. The accused in his written statement to the police does not dispute what he did but he said that it was the victim herself who wanted it to happen, that she was acting in a provocative manner and that she wanted him to do that to her. The accused said that the victim enjoyed what he did to her. In the pre-sentence report the accused told probation that he was aroused after watching the television program with the victim. The television program is the television series ‘Home and Away’ and it was the kissing scenes and seeing the women in swimwear on TV that he said aroused him. I do not accept the accused version for the simple reason that I cannot believe that a 10 year old would ask for oral sex up front. If indeed that was the case, the accused at his age should know better.
4. There is a reason why the law imposes a maximum life imprisonment for sexual offending against children younger than 12 years old. It is for the protection and safety from such criminal behaviour. Sexual offending against young girls in our society sadly is prevalent and there are no boundaries, even at the hands of their fathers and uncles some are no longer safe; members of the clergy have also failed to provide that safety and security expected of them towards young girls. Sexual offending against young girls is on the rise and the Court will not back down from imposing custodial sentences if necessary, and for offending of this nature involving young girls’ custodial sentences are always warranted.
5. The prosecution identifies the usual factors which accompanies offending involving family members as breach of trust usually committed by an older male member on a younger female so an aggravating factor is the age disparity and vulnerability of the victim; the fact that it took place at home, a place where young victims should be protected and feel safe but is not so with this sort of behaviour that knows no boundaries.
6. The victim in the victim impact report says the reason why she did not tell anyone about this incident was because the defendant told her not to mention to anyone. She says she always feels angry when she thinks about what happened; it is very unfortunate that the young victim was constantly reminded of this incident as she would always see the perpetrator at family gatherings yet could not tell anybody about what happened.
7. The victim’s mother shows her disgust at the defendant or her son in law and asks the Court for an order to make sure that the defendant is not seen anywhere near her family for the safety of her daughter.
8. The prosecution in identifying the aggravating factors addressed the sentencing guidelines in Attorney v Lua^[3] recommending a custodial sentence with a starting point of 4 ½ years according.
9. The defence recommends a starting point of 3 years if the Court considers a custodial sentence.
10. The accused is said to be 62 years old but at the time of the offending he would have been in his late 50’s. He is the victim’s eldest sister’s husband and lives on the same compound as the victim but in different houses. The accused could be a risk to any other young girls given what he has done to the young victim in the present case. Even though this is an opportunistic offending this does not mean that the accused lacked pre-meditation. Their Honours in R v AM^[4] said that opportunistic offending shows a predatorial disposition on the part of the offenders.
11. The accused is of prior good character at the time and is a first offender.
12. The accused has been banished from Vaimoso and is now living at his village of Lotofaga with a niece and nephew while his wife and children remain at Vaimoso. His daughter in the pre-sentence report speaks lovingly of her father, the accused, and says that what her father did was out of character.
13. I agree that the accused behaviour was impulsive. He watched TV, he got aroused, the young victim was present and he acted out his feelings. However, in saying that the accused is much older than the victim, he is considered an uncle to the victim and he has daughters himself; those factors should have overcome any ‘urges’ the accused may have had at the time leading to such actions.
14. The accused is now 62 years old, a grandfather and has pleaded guilty to the offending. This incident took place about 6-7 years ago in 2013. The accused at the time was in his mid to late fifties. Since then he has never again acted out on impulse on the same victim or on any other young girl. The matter came to light when one of the male in laws did something similar.
15. The accused is a first offender and I accept that he is truly remorseful. Despite, the fact the matter took place some 6-7 years ago, he has owned up to what he did and the Court takes it as the accused taking responsibility for his behaviour.
16. The circumstances of this offending falls in the middle range of band one in Lua v Police.^[5]A 3 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 6 months. This leaves 18 months.
17. The accused is sentenced to 18 months’ imprisonment. Less any time in custody.
    

JUSTICE TUATAGALOA

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