Police v FF [2022] WSSC 68 (21 December 2022)

SUPREME COURT OF SAMOA
Police v FF [2022] WSSC 68 (21 December 2022)

Case name:	Police v FF
Citation:	[2022] WSSC 68
Decision date:	21 December 2022
Parties:	POLICE (Prosecution) AND FF (Defendant)
Hearing date(s):
File number(s):	S1147/22, S1149/22
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	- For the unlawful sexual connection on this 9 year old child convicted and sentenced to 2½ years in prison. - On the charge of found by night convicted and sentenced to 2 years in prison concurrent term. Remand in custody time to be deducted.
Representation:	A.V.B Vukalokalo for prosecution Defendant in person
Catchwords:	- Found by night – sexual connection – permanent suppression order – non-penetrative sexual connection – Band approach – aggravating factors -
Words and phrases:
Legislation cited:	Sentencing Act 2016, section 8
Cases cited:	Police v MF [2022] WSSC 65 Attorney General v Lua [2016] WSCA 1
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

FF
Defendant

Counsel:
A.V.B Vukalokalo for the prosecution
Defendant in person
Sentence: 21 December 2022

S E N T E N C E

1. The defendant has pleaded guilty to two charges S1149/22 that at Fasitoo-tai on 28 August he was found by night in the dwelling house of the female complainant with intent to commit a criminal offence therein. Secondly S1147/22 that on the same night he did commit sexual connection on the victim by licking her genitals the victim being a child under 12 years of age.
2. There will issue a permanent suppression order prohibiting publication of the victims name and details and to further protect her identity also the details of the defendant who is a neighbour. This case is to be reported in the law reports as Police v FF.
3. The summary of facts which has been accepted by the defendant states that he is a 23 year old male of Laulii and Fasitoo-tai single unemployed stays at home doing normal chores of a young Samoan male. The victim at the time was 9 years of age and a student at the local Primary School. The victim was known to the defendant as he is one of her neighbours.
4. On 28 August at around 1:30am in the morning the victim was asleep in her room with her sister while the rest of the family were asleep in another part of the house. The defendant entered the house through the unlocked front door and approached the victim. He removed the victims pants and as the victim tried to move away he put his hands over her mouth. He continued with his efforts and licked the victims vagina and thighs. At this time the victims uncle came into the room, turned on the light and found the victim naked with her pants around her knees and the defendant leaning over her. The victims uncle alerted the family and the defendant exited the house, probably quite quickly. The matter was reported to the Police leading to the defendants appearance before the court today.
5. This is serious offending for which the defendant must be held accountable. In his plea in mitigation he tried to blame alcohol but that is no excuse for any kind of behaviour. The rule about alcohol is very simple if you cannot drink and act responsibly then best you do not drink at all.
6. The defendants conduct must also be denounced by the court in the strongest possible terms and his sentence must serve to deter him and others who may foolishly decide to follow this kind of poor example. The court must also bear in mind the particular provisions of section 8 of the Sentencing Act 2016 that apply where a victim is under 18 years of age and the comments of the court in this regard in the recent judgment of Police v MF [2022] WSSC 65, see paragraph 10 thereof.
7. Sentencing for non-penetrative sexual connection offences which is the case here is governed by the approach laid down by the Court of Appeal in Attorney General v Lua [2016] WSCA 1. That sets out a three Band approach and this case belong in my view in the B-2 category of moderate seriousness with some aggravating features.
8. The aggravating factors here include the very young age of the victim, her vulnerability as she was sleeping alone, the age disparity between her and the defendant of about 14 years and the fact that he used some force to overpower her resistance. But I accept that this offending belongs in the lower end of the B-2 band and a start point of 5 to 6 years is appropriate. I will use the lower figure of 5 years.
9. But there are deductions from that start point the defendant is entitled to. I will treat the defendant as a first offender for the purposes of this matter as his previous conviction was for a non-sexual offence. However he is therefore not a first offender. And there is no evidence there has been customary reconciliation or apology made in this matter. The defendant however is entitled to a deduction for his guilty plea which is significant because it has saved a 9 year old being re-traumatized by a court case.
10. He is therefore entitled for a deduction for that plea I will deduct 2 years for your guilty plea and 6 months for your first offender status and given you are in your early 20’s to account for potential rehabilitative prospects. Leaves an end sentence of 2½ years.
11. For the unlawful sexual connection on this 9 year old child convicted and sentenced to 2½ years in prison. On the charge of found by night convicted and sentenced to 2 years in prison concurrent term. Remand in custody time to be deducted.
12. Lona uiga e 2½ tausaga lou fa’asalaga ae toesea ai le taimi lea sa e nofo taofia ai. Ua e malamalama? (Defendant: o lea lava).
    

JUSTICE NELSON