Police v FVT [2023] WSSC 58 (15 September 2023)

IN THE SUPREME COURT OF SAMOA
Police v FVT [2023] WSSC 58 (15 September 2023)

Case name:	Police v FVT
Citation:	[2023] WSSC 58
Decision date:	15 September 2023
Parties:	POLICE (Prosecution) v FVT (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Michael Clarke
On appeal from:
Order:	On the more serious charge of sexual connection by the touching of the genitalia of XY on a totality basis, you are convicted and sentenced to 15 months imprisonment less any time remanded in custody. On the charge of your indecent assault of AB, you are convicted and sentenced to 2 months imprisonment, concurrent.
Representation:	T. Fesili for Prosecution V. Fa’asi’i for the Accused
Catchwords:	Indecent assault – unlawful sexual connection – grandfather of victims – two victims – custodial sentence.
Words and phrases:
Legislation cited:
Cases cited:	Police v Lafu [2015] WSSC 110; Police v XM [2017] WSSC 157.
Summary of decision:

PERMANENT ORDER PROHIBITING PUBLICATION IN NEWS MEDIA, INTERNET OR ANYOTHER PUBLICLY ACCESSIBLE DATABASE THE NAMES AND VILLAGE DETAILS OF THE ACCUSED AND VICTIM

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

A N D:

FVT

Accused

Counsel: T. Fesili for Prosecution
V. Fa’asii for Accused

Sentence: 15 September 2023

ORAL SENTENCE

The Charge:

1. FVT, you appear for sentencing on one charge of indecent assault, namely the caressing of breasts of AB and one charge of unlawful sexual connection by the touching of the genitalia of XY. Both charges are set out in the Charging Document dated 6 February 2023.

The Offending:

2. Accordingly to the Amended Summary of Facts dated 23 February 2023, sometime between the 1 January and the 31 December 2019, your 15 year old granddaughter AB and her two sisters stayed with you as her father was overseas on seasonal work. As AB was asleep with her two sisters in the living room, you went to her, lay on top of her head and caressed her breasts. She woke up and left and told her step-mother.
3. Between the 1 January 2020 and 31 December 2020 while your other granddaughter XY was staying with you with her other sisters including AB, XY was asleep. You went to her as she slept and touched her genitalia. XY woke to find your hand inside her shorts and panty. She was scared and told her step-mother. She also told her aunty and XY’s mother and they contacted police.

Background of the Accused:

4. You are a 69 year old male. You are not formally employed but work your family plantation. You are married with children. You are without medical ailment.

The Victim:

5. The two victims are your granddaughters. AB was 15 years of age and XY 14 years of age. In her Victim Impact Report, AB speaks of her disgust with you and your offending and how this could happen to her, particularly from within her own family and as her grandfather. She was scared, now tries to forget about what happened and although you only reconciled with her father and family and not to her, she forgives you.
6. XY was 14 years of age. She speaks of her disgust and fear at the time the incident occurred. She says that her conscience is now clear and the weight of the court case is no longer on her as it was for a long time. Even though you have not apologized to her, she forgives you and wants to move on.

Aggravating Features of the Offending:

7. The following are the aggravating features of the offending:
   • (i) Prevalence of sexual offending within families;
   • (ii) Gross breach of trust. You were their grandfather and the victims entrusted to your care while their father was overseas on seasonal work;
   • (iii) Age disparity between you and the victims and their vulnerability given their age; and
   • (iv) There were two victims to your offending.
8. Although prosecution submits that the offending was premeditated, it was certainly a conscious decision by you to commit these acts. However, the Amended Summary of Facts suggests more opportunistic offending as opposed to a calculated and premeditated act.
9. In terms of the mitigating features of the offending, there are none.
10. There are no aggravating factors personal to you as an offender, you are for the purposes of sentencing a first offender. Although the Pre-Sentence Report refers to a traffic conviction, none is referred to in the amended summary of facts. Even if you had such a conviction, I would still sentence you as a first offender given that it was a minor traffic matter.

The Mitigating Factors:

11. The mitigating factors I take into account on sentencing are as follows:
    • (a) Remorse;
    • (b) I accept your prior good character;
    • (c) Your guilty plea to the charges laid as it was;
    • (d) Reconciliation; and
    • (e) Village penalty.

Discussion:

12. FVT, you were the two victims’ grandfather. They were 15 and 14 years of age when you sexually assaulted them. How a grandfather could do such a vile and disgraceful act to his own granddaughters is difficult to understand. You also did so while their father was overseas and they were left to your care.
13. Your Church Bishop speaks of your humility, peacefulness and respect. Your offending on these two occasions seems out of character but it does not diminish how contrary such acts are to your role as a leader to your family and their grandfather and how disgraceful and shameful your actions were on your two granddaughters.
14. Prosecution seeks 3 year sentence start point. Your counsel seeks a non-custodial sentence and relies on Police v XM [2017] WSSC 157 and Police v Lafu [2015] WSSC 110. In the alternative, a 2 year custodial sentence start point.
15. In my respectful view, a non-custodial sentence is entirely inappropriate given the serious breach of trust, the vulnerability and number of victims and the other aggravating features I have identified. Police v XM can be distinguished in that there was no blood relationship; the sexual activity consensual in that the victim willingly participated, and the victim was 19 years old. Police v Lafu involved a single victim and the quality and degree of the breach of trust does not appear as significant as this case.
16. Having regard then to the authority that I have been referred to, and the nature of the offending, I however view 2 years as the appropriate start point on a totality basis. From that start point, I deduct 3 months for your remorse and reconciliation; 3 months for the village penalty and prior good character and 3 months for the late guilty plea leaving an end sentence of 15 months imprisonment.

Result:

17. On the more serious charge of sexual connection by the touching of the genitalia of XY on a totality basis, you are convicted and sentenced to 15 months imprisonment less any time remanded in custody.
18. On the charge of your indecent assault of AB, you are convicted and sentenced to 2 months imprisonment, concurrent.
    

JUSTICE CLARKE