Police v A.T. [2021] WSSC 6 (15 February 2021)

IN THE SUPREME COURT OF SAMOA
Police v A.T. [2021] WSSC 6

Case name:	Police v A.T.
Citation:	[2021] WSSC 6
Decision date:	15 February 2021
Parties:	POLICE (Prosecution) and A.T. (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Niavā Mata K. Tuatagaloa
On appeal from:
Order:	(a) Sexual intercourse with a girl below 16 years (x6) The defendant is convicted of the serious offending of having sexual intercourse with a girl below 16 years’ old is sentence to 3 years and 9 months’ for each count but to be served concurrently. (b) Indecent Act (sucking breasts) The defendant is convicted and sentenced to 12 months’ imprisonment, to be served concurrently with the above sentence. In other words, all sentences are to be served concurrently.
Representation:	V. Faasii for Prosecution M. L. Su’a-Mailo for the Defendant
Catchwords:	indecent act – sexual connection with a minor – familial connection between defendant and victim – occurred multiple times – custodial sentence – 7 year age disparity – pre-meditated – opportunistic – early guilty plea – first offender – village penalty imposed & banished
Words and phrases:
Legislation cited:	Crimes Act 2013, ss. 59; 59(3).
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

A.T.
Defendant

Counsel:
V. Faasii for Prosecution
M. L. Su’a-Mailo for the Defendant

Date: 15 February 2021

S E N T E N C E

Charges

1. The defendant appears for sentencing on one charge of Indecent Act^[1], and six charges of sexual intercourse with a girl below 16 years of age^[2] that occurred on or between the following dates:
   • Indecent Act (sucking breasts) – 17 November 2019;
   • Sexual intercourse -
     • 01 December 2019 – 30 December 2019;
     • 01 January – 30 January 2020;
     • 01 March – 30 March 2020;
     • 01 April – 30 April 2020;
     • 01 May – 30 May 2020;
     • 01 June – 30 June 2020.
2. The defendant is 21 years of age and the victim was 14 years’ old at the time.
3. Both are from the village of Falevao and are related. The victim is the daughter of the defendant’s cousin; in other words, she is his niece.
4. The victim (according to the summary of facts) would at times spend the weekends at the defendant’s house and they live in close proximity of each other.

Discussion

5. The defendant first approached the victim when the victim was staying the night at his house, she was sleeping inside the room with the defendant’s mother sleeping in the sitting room. The defendant went inside the bedroom, lay on top of her and sucked her breasts (indecent act).
6. The first time the defendant and the victim had sexual intercourse was sometime in December 2019 and with the exception of the month of February 2020, the defendant had sexual intercourse with the victim up to June 2020. According to the summary of facts, it was the defendant who was the aggressor, he approached the victim and told her where to meet him. He approached her at night when the family was asleep or during the day when it was only the victim and a younger sibling at home.
7. The Court has noticed that the timeframe when the offending took place was the period during the measles outbreak and when the country first went into lockdown for the COVID19 pandemic when schools were closed.
8. The matter came to light when the young victim became pregnant. The defendant would know that the victim is very young because they are related, they live in close proximity to each other and the victim at times stayed over at their house. The victim exhibits predatorial behaviour in the circumstances of his offending.
9. In a village setting and with the close familial relationship the ‘male’ relatives are entrusted by family members that they would look after and respect their ‘female’ relatives which in this case the defendant has abused and broken the trust.
10. The submissions by counsel have highlighted the abusive behaviour of male members against girls of their own families especially the young with the 13-16 year age group. A trend that is a concern as it goes against our morals and contradicts the Samoan saying, “A malu i fale, e malu foi i fafo,” which is, if one is safe within his or her family, one is also safe outside of his/her family or home. This is no longer the case with the common occurrence of this type of offending in families.
11. Appropriate is a custodial sentence.

Aggravating factors

12. The Prosecution recommends:
    • (a) Age disparity of seven years between the defendant’s age and that of the victim. The age disparity also shows the vulnerability of the victim;
    • (b) Familial relationship in that the victim is the daughter of the defendant’s cousin. The victim is a niece of the defendant, and the offending would no doubt create tension between the defendant and his cousin (the victim’s father);
    • (c) Abuse of power. The difference in age and the familial connection between the defendant and victim plus and the circumstances of the offending indicates an abuse of position and influence the defendant had over the victim;
    • (d) The offending is both pre-meditated and opportunistic. That is, the times the offending took place which was either at night when everyone as asleep or during the day when it was only the victim at home with a younger sibling;
    • (e) Impact of the offending. The victim got pregnant, therefore became a mother at a very young age. The impact of such an event and sudden change in circumstances in the life of the young victim will have a detrimental impact on her education, and also her own self-confidence among peers, people within her extended family, her village and in society. There is a sense of displacement when the victim was removed from her family and familiar environment to a different environment, with SVSG.

Mitigating factors

13. The only mitigating factors are the early guilty pleas, the apology to the victim’s family and first offending status. The Court also takes into account the village banishment and penalty imposed.
14. Just as cultural values or Samoan culture and traditions are to be taken into account by the Court to discount any sentences to be imposed, the Court would also strongly impose sentences where such cultural values are breached. Cultural traditions do not entitle a defendant to complete absolution from serious offending.

Starting point

15. I do not agree with the starting point of 2-3 years as proposed by Prosecution. The proposed starting point is within the range of authorities (cited) of similar offending. Each defendant must be sentenced according to the peculiar circumstances of his/her offending. In the present matter, the circumstances of the offending (multiple) warrants a higher custodial sentence.
16. The starting point of a 7 years is appropriate and I make substantial discounts for the defendant’s first offender status, the village penalty and banishment imposed, I therefore deduct 18 months. I also make allowance of 6 months for any apology by the defendant’s family to the victim’s family. The last deduction I make is a 25% discount for the early guilty pleas of a further 15 months, this leaves 3 years and 9 months.

Result

(a) Sexual intercourse with a girl below 16 years (x6)

17. The defendant is convicted of the serious offending of having sexual intercourse with a girl below 16 years’ old is sentence to 3 years and 9 months’ for each count but to be served concurrently.

(b) Indecent Act (sucking breasts)

18. The defendant is convicted and sentenced to 12 months’ imprisonment, to be served concurrently with the above sentence. In other words, all sentences are to be served concurrently.
19. The sentence imposed by the Court should convey a strong message that the Court takes sexual offending against young girls very seriously and especially so if such offending happens within families and committed by relatives.
    

JUSTICE TUATAGALOA

NB: The defendant’s identity is prohibited from publication due to the fact that the victim is young and the close familial relationship between the defendant and victim.

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^[1] Crimes Act 2013, s.59(3) – max 7 years’ imprisonment.
^[2] ibid, s.59 – 10 years’ imprisonment.