Police v E.T [2023] WSSC 56 (12 September 2023)

IN THE SUPREME COURT OF SAMOA
Police v E.T [2023] WSSC 56 (12 September 2023)

Case name:	Police v E.T
Citation:	[2023] WSSC 56
Decision date:	12 September 2023
Parties:	POLICE (Prosecution) v E.T (Accused)
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:	You are convicted and sentenced to 13 months’ imprisonment less any time in custody.
Representation:	T. Sasagi for Prosecution A. Lesa for the Accused
Catchwords:
Words and phrases:	Sexual conduct – indecent assault – victim under 12 years of age – touched victim’s breasts – kissed victim on mouth – familial connection – huge age disparity – pre-meditated – found by night – custodial sentence.
Legislation cited:	Crimes Act 2013, s. 58(3).
Cases cited:	Attorney General: v Lua [2016] WSCA 1; Police v Pesamino [2019] WSSC 75.
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

A N D:

E.T

Accused

Counsel: T. Sasagi for Prosecution

A. Lesa for the Accused

Date: 12 September 2023

S E N T E N C E

1. E.T, you are appearing for sentence on one count of sexual conduct (indecent assault) with a child under 12 years old pursuant to s. 58(3) of Crimes Act 2013. The sexual conduct was by way of touching the girl’s breasts and kissing her on the mouth at the same time which penalty is maximum 14 years’ imprisonment.
2. The summary of facts prepared by the Prosecution says that you had been drinking on the night of 23^rd October 2021 and that at some time during the night you entered the house where the victim and her parents were sleeping. You walked over to where the victim was sleeping, caressed her hand and touched her breasts; following, you then kissed her on the mouth whereby the victim woke up and you walked away.
3. You are 55 years old, single and unemployed. The victim was 11 years old at the time of the offending and she is your niece, the daughter of your older brother. The victim attends St. Mary’s Primary school at Savalalo and was in Year 11. You live on the same compound with the victim and her parents but in different houses.

The Prosecution’s submissions

4. Prosecution identified the following as aggravating features of the offending:
   • (a) Vulnerability of the victim due to the age disparity of 44 years between the victim (11 years old) and the accused (55 years old);
   • (b) Pre-meditation – the accused entered the house and walked to where the victim was sleeping and committed the offending;
   • (c) Familial relationship – the accused is the victim’s father’s younger brother. As such there was also a breach of trust;
   • (d) Found by night – the accused’s actions amount to the offending of found by night. In the Samoan context it is referred to as ‘moetolo’ or ‘mataifale’. This is very serious especially if the victim is a member of the family.
5. Prosecution also referred to several sentencing authorities and recommends a starting point of three (3) years.

Defense Counsel’s submissions

6. Defense Counsel acknowledged the Court’s stance with sexual offending against children under 12 years old. Having referred to several sentencing authorities of similar circumstances, Counsel recommends a two (2) years starting point.
7. Defense Counsel identifies the accused’s early guilty plea and prior good character as mitigating factors in favour of the accused.

Discussion

8. Cases of sexual offending against young girls being committed within their own home environment at the hands of a family member is becoming prevalent. The Court denounces such inappropriate and unacceptable behaviour. The act of sexual offending is frowned upon especially when it’s happening in the home where the child should feel safe especially amongst family members. This, the Court will not tire from handing out custodial sentences in order to send out the message to mature males that this behaviour is not tolerated.
9. The law has been passed making sexual intercourse with girls under 12 or 16 years unlawful is purely for their protection from the hands of the perpetrators at such a vulnerable age. The case of Attorney General v Lua^[1] provides the guideline for non-penetrative offences against young children under 12 years old:
   • (a) 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.

(b) Band two: 5-12 years

Where the offending is of moderate seriousness and involves two or three aggravating features.

(c) 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.

(NB: It is to be noted that the offending of indecent assault against children under 12 years is maximum 14 years’ imprisonment)

10. The sentencing authority referred to by Counsels most aligned to the present case is Police v Pesamino^[2] where there was a familial relationship of uncle and niece, the age disparity of 33 years is closer to the present case and there was alcohol involved. The lower end of Band 1 was adopted by the Court with the end sentence of 16 months’ imprisonment.
11. The most aggravating factors of this offending are:
    • (i) Age of the victim – victim was nine years’ old while the accused was 55 years’ old. There is the age disparity of 44 years. The bigger the age gap between the victim and the accused, the more vulnerable the victim is and the higher the accused’s culpability is;
    • (ii) The close familial relationship between the accused and the victim. Samoan society is all about family immediate or distant. We look after each other and our culture places emphasis on the young children, our elderly and girls (or women).
12. Although the accused has a prior conviction, his prior is not relatable or similar to the current offending the prior was committed more than ten years ago. The accused will be treated as a first offender. The mitigating factors are the accused’s early guilty plea and his first offending status.
13. Although the offending was brief and the victim did not suffer any physical injuries, the age disparity and the close familial connection between the accused and the victim places this offending in the lower to mid-range of band one.
14. I find appropriate the starting point of two (2) years and make the following deductions: I deduct 6 months for the victim’s mother plea for the Court’s leniency upon the accused, his prior good character referred to by his faifeau and pulenuu in their written testimonials and being remorseful. I also accept that he is remorseful. This, leaves 18 months’. I give 25% discount for your early guilty plea which amounts to another 5 months. The end sentence is 13 months’ imprisonment.
15. E.T, you are convicted and sentenced to 13 months’ imprisonment less any time in custody.

JUSTICE TUATAGALOA

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^[1] Attorney General v Lua [2016] WSCA 1, at paragraph 24
^[2] Police v Pesamino [2019] WSSC 75.