Police v FP [2022] WSSC 40 (16 June 2022)

IN THE SUPREME COURT OF SAMOA
Police v FP [2022] WSSC 40 (16 June 2022)

Case name:	Police v FP
Citation:	[2022] WSSC 40
Decision date:	16 June 2022
Parties:	POLICE (Prosecution) v FP (Accused)
Hearing date(s):	18th – 20th May 2022
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Leilani Tuala-Warren
On appeal from:
Order:	For sexual connection with a child under 12 years, the accused is convicted and sentenced to 2 years and 10 months imprisonment. For the offence of indecent act, he is convicted and sentenced to 1 year and 6 months imprisonment to be served concurrently. Time spent in custody will be deducted. Finally, in terms of orders, there will be an order permanently suppressing or prohibiting the publication of the name of the victim, and her village.
Representation:	V. Faasii for Prosecution M. Soonalole for the Accused
Catchwords:	Sexual connection with a child – indecent act on a child – pre-meditation – breach of trust – custodial sentence.
Words and phrases:	“guilty verdict following assessor trial” – “previous conviction (causing injury)” – “sentencing bands (sexual connection)”.
Legislation cited:	Crimes Act 2013, ss. 58(1); 58(3).
Cases cited:	Attorney General v Lua [2016] WSCA 1.
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

P O L I C E

Prosecution

A N D

FP

Accused

Counsel: V Faasii for Prosecution

M Soonalole for the Accused

Sentence: 16 June 2022

SENTENCE

The charges

1. The accused appears for sentence on one count of sexual connection with a child under 12 years pursuant to section 58(1) of the Crimes Act 2013 which carries a maximum penalty of life imprisonment, and one count of indecent act on a child pursuant to section 58(3) of the Crimes Act 2013 which carries a maximum penalty of 14 years imprisonment.
2. He was found guilty of both charges after an assessor trial on 20 May 2022.

The offending

3. According to the evidence, the accused’s wife works for the victim’s grandfather as their house girl. On Sunday 2 December 2018, the accused and his wife had toonai at the victim’s home. After toonai the wife of the accused asked the victim’s grandfather if they could take the victim to watch some church performances. This was allowed so they went to the home of the accused and his wife.
4. While the accused, his wife and the victim were at his house, the wife of the accused went to shower. The accused then told the victim to lie on his legs as he was sitting cross legged on the floor. When she lay down, the accused put his land into her shorts and panty and rubbed her vagina. He then sucked her lips and cheeks and told her not to tell his wife and her grandfather.
5. Later that same week, the victim told her grandfather what happened.
6. The victim was 4 years old at the time.

The accused

7. The accused is 45 years old, and was in a de facto relationship which has ended as a result of this matter. He has worked a number of jobs including Ministry of Agriculture and EPC.
8. His mother is very supportive of him saying that he is dependable, trustworthy and hardworking.
9. He maintains his innocence to Probation, saying he has been framed for this matter.
10. He has a previous conviction for causing injury in the District Court in 2018.

The victim

11. The victim was 4 years old when the offending occurred. She is now 8 years old. The victim’s mother provided the VIR and said her daughter is scared and does not want to see the accused again. She believes the impact on her daughter was huge and she will try to engage her daughter in activities to take her mind off what happened. She is concerned about the long term impact of this offending on her daughter.

Aggravating features of the offending

12. The very young age of the victim. She was 4 years old.
13. This offending was premeditated. He waited for his wife to go shower so he could be alone with the victim.
14. There was a breach of trust as the grandfather of the victim allowed the victim to go with the accused and his wife.

Mitigating Factors

15. I take into account in mitigation his personal circumstances as in Counsel’s submissions. I do not find that there are any other mitigating factors.

Discussion

16. There is a need to hold the accused accountable for the harm done to the victim, to promote in him a sense of responsibility for, and an acknowledgment of that harm, and to provide for the interests of the victim.
17. Prosecution has submitted that a starting point of 5 years imprisonment is appropriate (higher end of Band one). Defence Counsel has recommended that a starting point of 4 years imprisonment, in Band one also, is an appropriate starting point.
18. In the case of Attorney General v Lua [2016] WSCA 1 (19 February 2016), the Court of Appeal found it desirable to establish a guideline for sexual connection against children and pronounced that the new guideline applies to all sentencing decisions for unlawful sexual connection against children under 12 years from now on. The Court remarked that the guidelines ‘do not place the sentencing judge in a straight-jacket”. I would add that the guidelines have been extremely helpful in working towards, not necessarily the exact same sentence for similar offences, but a consistent approach to sentencing of similar offences in the exercise of judgment.
19. Three bands were considered appropriate for sexual connection offending against children under 12 years. The bands are;
    • (i) Band one: 2-6 years (appropriate where the offending is at the lower end of the spectrum and there is an absence of aggravating features or their presence is limited);
    • (ii) Band two: 5-12 years (where the offending is of moderate seriousness and involves two or three aggravating features); and
    • (iii) Band three: 11 years-life imprisonment (where the offending is the most serious of this kind, for example it involves offending against multiple victims over a significant period in the presence of serious aggravating features).
20. I note the observation made by the Court of Appeal in Attorney General v Lua;
    • [25]“...That Band one has a range from 2 to 6 years reflects the diversity of sexual connection offending. The least capable offending will comprise a single skin on skin touching of the genitalia or anus which is of limited duration.”
21. This offending falls within Band one (2-6 years) as it was a single incident and was of short duration. However, given the very young age of the victim, being 4 years old, it falls in the middle of Band one.
22. Having therefore considered all the circumstances, and in particular having regard to the aggravating features relating to this offending (there being no mitigating features of the offending), I take 3 ½ years imprisonment as the starting point for sentence. I deduct 8 months for his personal circumstances.

The result

23. For sexual connection with a child under 12 years, the accused is convicted and sentenced to 2 years and 10 months imprisonment.
24. For the offence of indecent act, he is convicted and sentenced to 1 year and 6 months imprisonment to be served concurrently.
25. Time spent in custody will be deducted.
26. Finally, in terms of orders, there will be an order permanently suppressing or prohibiting the publication of the name of the victim, and her village.
    

JUSTICE TUALA-WARREN