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Supreme Court of Samoa |
SUPREME COURT OF SAMOA
Police v Samoa [2020] WSSC 99
Case name: | Police v Samoa |
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Citation: | |
Decision date: | 22 December 2020 |
Hearing date: | 1 September 2020 |
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Parties: | POLICE v FELISE SAMOA (aka) FELISE VE’A FILIPO male of Vailele |
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File number(s): | S565/18, S541/18, S542/18 . |
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Jurisdiction: | CRIMINAL |
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Place of delivery: | Supreme Court Samoa Mulinuu |
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Judge(s): | Justice Fepulea’i Ameperosa Roma |
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On appeal from: | |
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Order: | (i) On the charge of attempted sexual connection, you are convicted and sentenced to 7 years imprisonment; |
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Representation: | V Faasii for Prosecution Lefau H Schuster for Accused |
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Catchwords: | |
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Words and phrases: | Attempted sexual violation, sexual connection – mitigating factors – aggravating factors – gravity of the offending
– sentence |
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Legislation cited: | Crimes Act 2013 s.53(1) & s.59(1) & s.50(b) Sentencing Act 2016.s5, |
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Cases cited: | |
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Summary of decision: | |
IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
BETWEEN
POLICE
Informant
A N D
POLICE v FELISE SAMOA (A.K.A) FELISE VEA FILIPO male of Vailele
Defendant
Counsel:
V Faasii for Prosecution
Lefau H Schuster for Accused
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Sentence: 22 December 2020
SENTENCING OF JUSTICE ROMA
Charges
[1] You appear for sentence on 3 charges, namely two (2) counts of sexual connection with a young person (s 59/(1) and 50(b), Crimes Act 2013) which attracts a maximum penalty of 10 years imprisonment; and one (1) of attempted sexual violation (s 53(1)) which attracts a maximum penalty of 14 years imprisonment.
[2] You denied the charges and were found guilty of all three following a defendant hearing on 1 September 2020.
Offending
[3] From the evidence which I accepted, the following are the brief facts:
(i) You were the deacon responsible for the Catholic Church parish at Malololelei between 2012 and 2016. The victim and her family were parishioners of the Catholic Church there;
(ii) As deacon, you and your wife developed a close relationship with the victim’s mother, a relationship described by witnesses at trial to be like family;
(iii) The victim and her siblings would normally spend time with you and your wife; and when the victim’s mother travelled, you and your wife would look after them;
(iv) On 3 separate occasions between 2013 and 2015, you committed acts of sexual assault on the victim;
(v) On the first occasion, you were massaging (fofo) the victim in the presence of your wife and the victim’s cousin. When they left, you told the victim to go inside the room, where you took off her shorts and panties, forced her to lie down and touched her vagina. When she cried as it was hurting, you then licked her vagina;
(vi) On the second occasion, the victim and her cousin had slept over at your place as her mother was travelling. In the early hours the following morning, she woke to find you touching her. You whispered to her to put her legs up but she moved around so that your daughter who was sleeping next to her could wake up. When she started to move, you got up and left;
(vii) On the third occasion, you called the victim into your office in the afternoon to help you with something on your computer. You stood behind her and started rubbing her breasts. You forced her to lie on the bed, removed her panties, told her not to make noise and tried to insert your penis inside her vagina. She cried before you got up and told her to leave as if nothing happened;
(viii) It was not until much later that these incidents were brought to the attention of the victim’s mother who then reported the matter to police. Despite the evidence which I heard and accepted, you continue to deny your offending in the pre sentence report and suggest that you were not given the opportunity to say something in your defence. The record is clear that at trial, you elected through Counsel not to give or call evidence.
Victim
[4] The victim is a female, now 18 years of age. At the time of the offending, she was over 12 and under 16 years. Since the incidents, she has left Samoa with her family and are now residing in the United States.
[5] The impact of your offending was explained by her in her evidence at trial and in the victim impact report. She says that she has suffered emotionally and psychologically and have come to distance herself from certain people. What you did caused her to live in fear and not to trust people.
Accused
[6] You are a 56-year-old married man with 4 children, aged between 13 and 19 years. You are the eldest of 4 male in a family of 11 siblings. Since completing school at secondary level, you have had a number of jobs with particular skill in carpentry. You married your wife in 2002 and attended the Moamoa Seminary together the following year. Following the completion of your training, you served as served as deacon for the Catholic Church at Salimu and Musumusu Fagaloa, Malololelei and Falefa.
[7] Your service was terminated by the Church as a result of your offending. You have returned to live with family at Vailele and worked for the Sisters of the Poor at Mapuifagalele. The testimonials by Father Mikaele Saufatu, your family sa’o, the Little Sisters of the Poor at Mapuifagalele and Father Penitito Mauga speak highly of your character. You are a person of previous good character.
Aggravating Factors
[8] In relation to your offending, the aggravating features are:
(ix) vulnerability of victim - she was aged 13 to 15 years at the time of your offending and under your care and supervision. She was in no position to defend herself;
(x) age disparity of about 36 years. As clear from previous sentencing decisions of this Court, the greater the age disparity, the more vulnerable the victim is and more serious the offending becomes;
(xi) multiple offending - the offending was similar in nature and occurred on 3 separate occasions;
(xii) premeditation - I accept that your offending was planned. Even when your wife and children were at the house, you made sure that you would be alone with the victim and there was less chance of you getting caught;
(xiii) nature of offending -your offending involved digital penetration of the victim’s vagina by your fingers, oral sex and an attempt to insert your penis in her vagina;
(xiv) significant breach of trust - Not only were you the religious leader of the parish of which the victim was a member, you were like family and a brother to the victim’s mother. She entrusted you and your wife with the care and supervision of the victim and her cousins whenever she travelled;
(xv) impact on victim as referred to earlier.
[9] There are no aggravating factors relating to you as offender.
Mitigating Factors
[10] There are no mitigating features of your offending.
[11] As Offender, I take into account in mitigation:
(i) Your personal circumstances which I have referred to above including the fact that you are a first offender;
(ii) That you attempted to apologise and understandably were rejected by the victim’s mother;
(iii) The impact on your service to the Church and your family.
Discussion
[12] The sentence I impose must hold you accountable for the harm you have caused the victim and her family, promote in you a sense of responsibility for your actions, denounce your conduct and deter you and other like-minded individuals from committing the same offence, as are the purposes of sentencing under s5, Sentencing Act 2016.
[13] It must also reflect the seriousness and gravity of your offending, the degree of your culpability and other factors identified under s6. A custodial sentence should no doubt serve those purposes and reflect those factors.
[14] I bear in mind that despite the deterrent sentences imposed by the Court, there continues to be a prevalence of sexual offending involving older male accused and young female victims.
[15] Prosecution seek a starting point of ten (10) years on the lead charge attempted sexual violation. I have carefully reviewed all the sentencing authorities cited in prosecution’s sentencing memorandum.
[16] In view of the aggravating factors of your offending, I adopt a starting point of 9 years. I deduct 16 months for your personal circumstances including your previous good character and first offender status. I deduct a further 8 months for the penalty imposed by the Church including being stripped of your religious duties.
Result
[17] The end sentence is as follows:
(iii) On the charge of attempted sexual connection, you are convicted and sentenced to 7 years imprisonment;
(iv) On the two (2) charges of sexual connection, you are convicted of each charge and sentenced to 18 months imprisonment. All 3 sentences are to be served concurrently.
JUSTICE FEPULEA’I A. ROMA
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