Police v Letoa [2023] WSSC 15 (24 April 2023)

IN THE SUPREME COURT OF SAMOA
Police v Letoa [2023] WSSC 15 (24 April 2023)

Case name:	Police v Letoa
Citation:	[2023] WSSC 15
Decision date:	25 April 2023
Parties:	POLICE (Informant) v TOLOA SEMI TOLOA, male of Palisi & Samata-i-tai (Defendant)
Hearing date(s):	01 March 2023
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Niava Mata Tuatagaloa
On appeal from:
Order:	The defendant, Toloa Semi Leota is convicted and sentenced to eight (8) months’ imprisonment less any time in custody.
Representation:	V. Faasii for the Informant J. Stowers for the Defendant
Catchwords:	Indecent assault – custodial sentence.
Words and phrases:
Legislation cited:	Crimes Act 2013, s. 60.
Cases cited:	Key v Police [2013] WSCA 3 (28 June 2013).
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

TOLOA SEMI LETOA, male of Palisi and Samata-i-tai

Defendant

Counsel: V Faasii for the Informant
J. Stowers for Defendant

Sentencing: 24 April 2023

SENTENCING OF TUATAGALOA J

The charges.

1. The defendant is 31 years old and now appears for sentence on the offence of indecent assault after a defended hearing where he was found ‘not guilty’ of sexual connection by digital penetration but found guilty of indecent assault by sucking the victim’s breasts. The offence of indecent assault carries the maximum penalty of five (5) years imprisonment.^[1]

The facts.

2. The facts as accepted by the Court are as follows:
   • (i) The defendant works for a company that delivers Digicel mobile cards to shops;
   • (ii) The victim works for a shop at Leulumoega-tuai;
   • (iii) The defendant knows the victim works at the shop because the shop is one of his employer’s clients that he delivers to;
   • (iv) The defendant on 22 April 2022 went to deliver cards to a shop at Manono-uta driving a white 4 door SUV;
   • (v) The victim who works at a shop at Leulumoega-tai was waiting at Salua, Manono for the bus to get to work;
   • (vi) The defendant on his way back to Apia from Manono-uta gave the victim a lift to work;
   • (vii) The victim sat in the back seat right behind the defendant or the driver’s seat;
   • (viii) On the way, the defendant asked the victim ‘e la o e eva’; he asked the victim three (3) times;
   • (ix) The defendant on the way near the airport at Faleolo stopped and parked off the main road next to a Water Tank belonging to Samoa Water Authority;^[2]
   • (x) The defendant got into the back seat where the victim was sitting; he put one arm around the victim and said the following words to the victim ‘manaia ou susu le ai’, ‘o ia ua fia mea’. The defendant then sucked the victim’s breasts.
   • (xi) The victim allowed the defendant to suck her breasts for she feared what the defendant may do to her after having said ‘o ia ua fia mea’.
   • (xii) The victim managed to get out of the car and went to the main road and flagged down two vehicles leaving her handbag and shoes in the defendant’s car.
   • (xiii) The victim told her mother what happened on the same day and a complaint was formally lodged with the Police.

The Prosecution’s submissions.

3. The Prosecution submits that the only mitigating factor in the defendant’s favour is his previous good character. They submit for a starting point of 15 months’ imprisonment on the following aggravating factors:
   • (a) High level of premeditation;
   • (b) Vulnerability of the victim as she was alone with the defendant;
   • (c) Breach of Trust in that the victim accepted getting a ‘lift’ from the defendant for she knew him and vice-versa through work;
   • (d) Impact of the offending on the victim

The Defence submissions.

4. Defence Counsel submits for a starting point of 6 months’ imprisonment alternatively a non-custodial or a supervision term submitting as follows (my summary):
   • (a) Concedes that there was planning and premeditation on the part of the defendant; that the defendant may have forcefully made his sexual advances to the victim but he let go as soon as the victim left him from inside the vehicle.
   • (b) Concedes that although the victim was in a vulnerable situation, the victim had options to firmly speak up and tell the defendant to take her directly to her workplace instead of being silent and that where the victim was sitting in the vehicle would have allowed the victim to resist and tell the defendant otherwise.
   • (c) Breach of Trust – The defendant and victim do not know each other well, therefore, breach of trust cannot be taken into consideration.
   • (d) Impact of the offending is discretionary to the Court but the Court should take caution not to place too much weight on the victim’s statements in relation to the offending.

Discussion.

5. Both Counsels have cited sentencing authorities imposed by the Courts. These sentences range from non-custodial (supervision) to custodial. This means that each sentence imposed depends on the circumstances and merit of each case.
6. Defence counsel in his submissions concedes that there was planning and premeditation on the part of the defendant that the defendant persistently suggested to the victim throughout the whole time when she was in the vehicle driven by the defendant. Even if the offending was opportunistic the Court of Appeal in Key v Police^[3] said that defendants who offend in an opportunistic manner should not be treated as lacking premeditation. I agree. The defendant was making a delivery run that day, he came across the victim whom he knows works for one of their client shops and offered her a lift. On the way he asked the victim three times ‘e la o e eva’. Despite the victim having said ‘no’ that she wanted to get to work before her shift starts at 1pm the defendant found a place and turned off from the main road and committed the offending. Furthermore, the defendant is familiar with the route he and the victim travelled and he would also know the place where the water tank is, that he turned into as he frequented that main road when he did his delivery runs. The defendant knew that where he would park off the main road no one travelling on the main road would be able to see what is going on inside the vehicle.
7. There is an element of abduction in that the defendant gave the victim a lift to work. He knew where the victim works and he also knew from when he asked her three times ‘e o e eva’ that the victim’s shift at work starts at 1pm and she wanted to get to work before 1pm; instead the defendant took the victim to a secluded area off the main road. The culpability of the defendant was of medium level.
8. There was restraint in movement when the defendant put his hand around the victim holding or hugging her to him thereby not allowing the victim to freely move away. By doing so, the victim was in a vulnerable position because she was completely at the mercy of the defendant in his vehicle.
9. Defence counsel in his submissions finds it unusual for there to be a breach of trust saying that the defendant and the victim do not know each other that well for there to be ‘trust’ but counsel in discussing the vulnerability of the victim submitted that, “The victim is quite acquainted of the defendant at her workplace at Leulumoega Supermarket”. The victim knows the defendant and likewise the defendant of the victim because they see each other whenever the defendant delivers Digicel cards to the shop where the victim works. When the defendant gave the victim a lift, the victim trusted that the defendant will drop her off at work. There was a breach of trust.
10. What has also come to light is the defendant’s abuse of his employer’s time and property when he used the company vehicle to do what he did during work hours. That is not the sign of ‘a person of good moral character, reliable and responsible’ that the defendant’s employer refers to in his character reference. He is certainly also not the ‘trustworthy’ person the Bishop of his church refers to.
11. The only mitigating factors in the defendant’s favour is his previous good character or being a first offender and being remorseful as submitted by counsel for the defendant.
12. I agree with the starting point suggested by the prosecution of 15 months’ imprisonment and deduct one (1) month for remorse; and six (6) months for his previous good character. The end sentence is 8 months’ imprisonment.

Sentence imposed.

13. The defendant, Toloa Semi Leota is convicted and sentenced to eight (8) months’ imprisonment less any time in custody.
    

JUSTICE TUATAGALOA

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^[1] Crimes Act 2013, s60.
^[2] Exhibit P1 – Photos 1 & 2.
^[3] Key v Police [2013] WSCA 3 (28 June 2013).