Police v Leuma [2021] WSSC 43 (10 September 2021)

SUPREME COURT OF SAMOA
Police v Leuma [2021] WSSC 43

Case name:	Police v Leuma
Citation:	[2021] WSSC
Sentencing date:	10 September 2021
Hearing date:
Parties:	POLICE v TAPAGA LEUMA male of Piu Falealili
File number(s):	Charging Document 2020 .
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court Samoa Mulinuu
Judge(s):	Justice Fepulea’i Ameperosa Roma
On appeal from:
Order:	- On the one charge of indecency on a child, you are convicted and ordered to come up for sentence in 12 months if called upon. You are further ordered to pay $500 prosecution costs and $500 court costs by 2pm next Friday 17 September 2021. In default 6 weeks imprisonment.
Representation:	I. Atoa for Prosecution S. Chan Chui for Accused
Catchwords:	Indecency –aggravating factors – mitigating factors – maximum penalty – sentence
Words and phrases:
Legislation cited:	Crimes Act 2013 s.58(3)
Cases cited:	Police v. Maifiti [2015] WSSC 205 (27 November 2015) Police v. Tanuvasa (23 February 2021)
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

POLICE v TAPAGA LEUMA male of Piu Falealili Defendant

Counsel:
I. Atoa for Prosecution
S. Chan Chui for Accused

Sentence: 10 September 2021

SENTENCING OF JUSTICE ROMA

Charges

[1] You appear for sentence on one charge of indecency on a child contrary to s58(3) of the Crimes Act 2013. The maximum penalty is 14 years imprisonment.

[2] At first you denied the charge but later sought to vacate your denial and substitute a guilty plea on 4 May 2021 before trial was to commence.

Offending

[3] From the prosecution summary which you accept through counsel, the brief facts are that on the morning of 23 May 2020 at Piu Falealili, the victim, an 11 year old female had come to your shop to buy chewing gum. You told her to come inside to get some chips. When she got to the door, you pulled her inside and pressed on her cheeks. You kissed her on the lips and put your tongue inside her mouth. She felt uncomfortable and pushed you away. She ran home and told her mother what happened.

[4] In the pre sentence report, you say that the victim had come to buy 4 packets of chips. She came back later saying that she was short of one packet which you then gave. You kissed her on the cheek as a father would do to his daughter before chasing her home. You also told probation how the victim’s family including her mother had turned up later and assaulted you causing you injuries.

Victim

[5] The victim is a 11 year old female of Poutasi Falealili. There is no VIR before me but clearly from the summary, what you did made her feel uncomfortable. She took off and told her mother.

[6] Her grandmother confirmed with probation that reconciliation has taken place.

Aggravating factors

[7] The aggravating features of your offending are:

(i) The vulnerability of the victim given her age;
(ii) Age disparity of 61 years;
(iii) Impact on the victim.

Mitigating Factors

[8] I take into account the following:

(i) Guilty plea which was not entered at the earliest opportunity;
(ii) Reconciliation – the victim’s grandmother confirms that you have seen their family twice to apologise. They have accepted your apology. They seek leniency in sentencing and have also asked to withdraw their complaint;
(iii) Village penalty – the village mayor confirms through probation that the village penalty which you have served included a $2,000 fine, 50 cartons of tinned fish and a cattle beast. You were further banned from the village until this matter has been determined;
(iv) Personal circumstances – From the presentence report and material before me, you are a 72 year old father of 7 children. Despite the level of your formal education being primary, you have worked hard mainly on the plantation to make ends meet and support your family. Through hard work, you went on to set up and operate a small shop which according to your church minister has helped your community by providing goods at affordable prices. You are also a talented baker. You have also volunteered time and resources in building homes for families in the community. The testimonial by your church minister Rev Leau Reupena speaks highly of your character and contribution to your community and church; and how you have sought one on one spiritual counselling to ensure that your offending is not repeated. One of your daughters describes you as a loving and hardworking father. You have asthma. You are also a first offender.

Discussion

[9] You are liable to a maximum penalty of 14 years imprisonment on the charge against you. Prosecution recommend that I impose a custodial sentence with a starting point of 9 months. I have reviewed the sentencing authorities they rely on in particular the case of Police v. Tanuvasa (23 February 2021) where the indecency complained of is similar to your offending. The 33 year old male defendant in that case was sentenced to 4 months imprisonment on indecency on a 9 year old female victim.

[10] I have also considered the submission by your counsel for a non-custodial sentence and the authorities cited, in particular Police v. Maifiti [2015] WSSC 205 (27 November 2015) where a 70 year old male defendant was handed a suspended sentence of 2 years and ordered to pay court costs of $500.00. The indecency complained of involved touching the 7 year old female victim’s genitals.

[11] I consider that the circumstances of your offending are less serious compared to Maifiti. I accept your counsel’s submission that compared to Tanuvasa on which prosecution rely, there are many mitigating factors in your favour.

[12] For those reasons, I have decided to impose a non-custodial sentence.

Result

[13] On the one charge of indecency on a child, you are convicted and ordered to come up for sentence in 12 months if called upon. You are further ordered to pay $500 prosecution costs and $500 court costs by 2pm next Friday 17 September 2021. In default 6 weeks imprisonment.

JUSTICE FEPULEA’I A. ROMA