Police v Leiataua [2021] WSSC 21 (18 June 2021)

IN THE SUPREME COURT OF SAMOA
Police v Leiataua [2021] WSSC 21

Case name:	Police v Leiataua
Citation:	[2021] WSSC 21
Decision date:	18 June 2021
Parties:	POLICE v PALEMENE aka ITAGIA LEIATAUA male of Vaiee and Lotopa
Hearing date(s):	17 May 2021 & 4 June 2021
File number(s):	S510/21
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE
On appeal from:
Order:	- Convicted and sentenced to 12 months imprisonment less time served in remand
Representation:	V Faasi’i for prosecution S Chan Chui for accused
Catchwords:	indecent act – sexual connection with a young person – aggravating features – breach of trust – guilty plea –cultural apology – starting point for sentence – sentence
Words and phrases:
Legislation cited:	Crimes Act 2013, s.59(1)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D:

PALEMENE aka ITAGIA LEIATAUA male of Vaiee and Lotopa.
Accused

Counsel:
V Faasi’i for prosecution
S Chan Chui for accused

Sentence: 18 June 2021

SENTENCE OF PERESE CJ

The Court makes a permanent order to suppress the name of the victim and any details which might identify the victim.

1. This is a matter involving a 46-year-old being sentenced on one charge of sexual connection as set out in the Charging Document, dated 3 May 2021.
   • That at Lefaga on the 15 February 2021, the defendant of Vaiee and Lotopa, committed sexual connection, namely touching her genitals, upon a young person – a female under 16 years old.
2. The defendant’s actions are a crime under s.59(1) Crimes Act 2013.

59. Sexual conduct with young person under 16-(1) A
person who has sexual connection with a young person is liable
to imprisonment for a term not exceeding 10 years.

(1) A person who attempts to have sexual connection with a young person is liable to imprisonment for a term not exceeding 10 years.
(2) A person who does an indecent act with or on a young person is liable to imprisonment for a term not exceeding seven (7) years.
(3) No person can be convicted of a charge under this section if the person was married to the young person concerned at the time of the sexual connection or indecent act concerned.
(4) In this section:

“young person” means a person who is 12 years or over and

under the age of 16 years; and

“doing an indecent act with or on a young person” includes indecently assaulting the young person.

3. The summary of facts, which he accepts, provides that:
   • (1) He was travelling on a bus to Apia at 6.30 on the morning of 15 February 2021, from his parents’ home at Vaiee.
   • (2) As is often the case on these buses at that time of the day, they are full of passengers, and a young girl who we now know was only 15 years old, sat on his lap, as a passenger. It was dark at the time. The defendant’s lawyer says that as the bus travelled through Lefaga he could not resist his urge and put his hands through the victim’s uniform skirt and inside her panty and touched the victim’s genitals. The Summary of Facts makes it clear that the defendant touched the victim’s vagina.
   • (3) The victim was uncomfortable with this and woke up a lady who was sitting next to him and she, the lady, yelled at the defendant and told him off. The victim them moved away from the defendant.
   • (4) The defendant’s behaviour was disgraceful. There are a number of aggravating features.
     1. The age of the victim. He would have known her to be a young girl because she was wearing her school uniform;
     2. There is a significant age disparity which raises two further features which aggravate his offending:
     100. • (i) A breach of trust.
          • (ii) Preying on and objectifying a defenseless young girl for his sexual pleasure.
     4. There was a brazenness about his action – he did it in a full bus, right next to a woman who was sleeping at the time.
     5. The impact on the victim is very serious. Her statement says that she is no longer able to catch the bus to school anymore, she is often fearful and she now finds it difficult to trust people. These are the results from the defendant not being able to resist his urge.
     6. A further aggravating feature is that this situation could and should have been avoided by the defendant asking the victim to sit on someone else’s lap other than on his.
4. I accept that the defendant is remorseful and that this is the first time he has appeared before the Court. I also acknowledge that he has a good support network around him with his work and Church, and his family. The defendant’s sister urges the Court to give leniency to his sentencing today because she says that what has happened is out of character and that he is a committed family and church member.
5. The defendant’s lawyer properly asks that the Court considers his early guilty plea, that he is a first offender and that he is remorseful.
6. There is however something quite fundamental which causes me concern, and that is his lack of insight into his offending. The defendant’s lawyer reports that he accepts that his actions were wrong and inappropriate and that any indecent feelings he had for the victim were unacceptable.
7. Mr Leiataua – your actions were not just inappropriate or unacceptable – they were criminal. For your own selfish reasons, you forced your deviant behaviour on a young girl. You violated her and her innocence, and you should feel deeply ashamed of yourself. To describe your actions as inappropriate or unacceptable means that you really don't understand what great harm you have caused. It is not simply the act of touching this young girl’s vagina, it is what this means for her – the loss of trust that she now feels, and an invasion of her deepest privacy. No doubt she, like almost all victims of sexual offending, feels a sense of worthlessness and shame. You caused that.
8. It is not clear to me why the practice of sitting on stranger’s laps has been allowed to continue in Samoa for so long. No doubt it is an economic issue for families and bus operators. But, in my respectful view, it is not an acceptable way for school children, particularly school-girls, to be transported to and from home. But for as long as it continues, men like the defendant must understand that this Court will punish those who violate in this way.
9. I have read the prosecutions sentencing memorandum and consider the suggested starting point of three years is appropriate.
10. There are three aggravating features.
    1. The victim was a young school girl;
    2. The age disparity – you are 46 and she was 15;
    100. The offending occurred in plain sight during a practice which school children use to get to school – being a lap passenger on a public bus.
11. I deduct 12 months’ years on account of his guilty plea, and a further 12 months on account of the defendant being a first-time offender, his remorse and the cultural apology.
12. In this case I consider that a deterrent sentence is needed, which also, unequivocally, denounces this type of exploitative behaviour. In these circumstances a community-based sentence is not appropriate.
13. This Court sentences you to a period of imprisonment of 12months, less time served on remand.

CHIEF JUSTICE PERESE