Police v Siaosi [2023] WSSC 69 (2 November 2023)

SUPREME COURT OF SAMOA
Police v Siaosi [2023] WSSC 69 (02 November 2023)

Case name:	Police v Siaosi
Citation:	[2023] WSSC 69
Decision date:	02 November 2023
Parties:	POLICE (Prosecution) AND EMANUELE IOSEFO SIAOSI a.k.a. MANU SIAOSI male. (Defendant)
Hearing date(s):
File number(s):	Charging Document dated 31/07/23
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	- In respect of charges 1 to 4 of the Charging document you will be convicted and sentenced to 6 years in prison. - In respect of charges 5 to 8 of the Charging Document you will likewise be convicted and sentenced to 6 years in prison but that is to be served concurrently. - O lona uiga o le aofaiga o lou faasalaga i le toese mo mataupu uma nei e 6 tausaga e te nofo sala ai. Ae tatau na toese mai le 6 tausaga lena le taimi atoa lea sa e nofo taofia ai e faatalitali le faaiuga o lau Fa'amasinoga.
Representation:	E. Tiitii-Lam for prosecution K. Koria for defendant
Catchwords:	- Sexual connection – digitally penetrating -
Words and phrases:
Legislation cited:	Sentencing Act 2016
Cases cited:	Attorney General v Lua [2016] WSCA 1 Police v MF [2022] WSSC 58
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

EMANUELE IOSEFO SIAOSI a.k.a. MANU SIAOSI male.
Defendant

Counsel:
E. Tiitii-Lam for the prosecution
K. Koria for the defendant
Sentence: 02 November 2023

SENTENCE

1. Because the victim in this matter is only 7 years of age I issue a permanent name suppression order together with an order prohibiting publication of any details that may serve to identify her and that includes the name of her village.
2. Emanuele has pleaded guilty to eight (8) counts of sexual assault of various kinds as detailed in the Police Charging Document dated 31^st July 2023 as follows:
   • (i) On or between 31^st December 2021 and 1^st January 2023, had sexual connection with the victim, a 7 year old by digitally penetrating her vagina.
   • (ii) On or between 31^st December 2021 and 1^st January 2023, had sexual connection with the victim by digitally penetrating her vagina, knowing that she was induced to consent to the connection by threat.
   • (iii) On or between 31^st December 2021 and 1^st January 2023, had sexual connection with the victim, a 7 year old female, by digitally penetrating her anus.
   • (iv) On or between the 31^st December 2021 and 1^st January 2023, had sexual connection with the victim by digitally penetrating her anus, knowing that she was induced to consent to the connection by threat.
   • (v) On or between 31^st December 2021 and 1^st January 2023, had sexual connection with the victim, a 7 year old female namely by licking her anus
   • (vi) On or between 31^st December 2021 and 1^st January 2023, had sexual connection with the victim namely by licking her anus, knowing that she was induced to consent to the connection by threat.
   • (vii) On or between 31^st December 2021 and 1^st January 2023 had sexual connection with the victim, a 7 year old female by putting his penis into her mouth and perform oral sex.
   • (viii) On or between 31^st December 2021 and 1^st January 2021, had sexual connection with the victim, namely by putting his penis into her mouth and perform oral sex, knowing that she was induced to consent to the connection by threat.
3. I accept however as submitted by counsel for the defendant that although there are eight (8) charges they only relate to two (2) incidents of sexual assault.
4. The Police summary of facts which has been accepted by the defendant through his counsel says that he is a 61 year old male, single and was employed by the victim’s family. As such he resided and lived with the family. The victim as stated was at the time of the offending 7 years of age and attending Primary School.
5. Charges 1 to 4 of the charging document states that on a Sunday between 31 December 2021 and 01 January 2023 the victim’s family were having their usual Sunday Toonai. On that Sunday the defendant dragged the victim to the toilet next to a Fale Samoa, undressed her and inserted his fingers into her vagina. He also tried to insert his penis into the victim’s anus but was unsuccessful. After that he inserted his fingers inside her anus and put it in his mouth.
6. The summary says the victim was in pain and tried to scream but the defendant covered her mouth. The defendant threatened the victim by telling her not to tell anyone about what he had done otherwise he will drown her in the river and this scared the victim. As a consequence the victim told no one about what the defendant had done to her.
7. Charges 5 to 8 of the Charging Document states that on another day during the same time period the defendant took the victim inside a room of the house of the family. Where he undressed her and licked her anus. He then put his penis inside the victim’s mouth and he performed oral sex on the victim.
8. The summary says he ejaculated inside the victim’s mouth and covered her mouth so that the victim could not scream for help. Like before he threatened the victim not to tell anyone about the incident and the victim complied.
9. The offending only came to light in the course of an overseas trip when the victim revealed to her older cousins what the defendant had done to her. The matter was reported to the Police by the victim’s caregiver grandmother resulting in the defendant being apprehended and charges being laid against him. At first mention the defendant through his counsel entered guilty pleas to all the charges.
10. Both counsel accept that sentencing for this kind of case falls within the Bands established by the Court of Appeal in Attorney General v Lua [2016] WSCA 1. Further the aggravating factors in this matter include the vulnerability of the victim, her very young age and the large age disparity between the parties.
11. There is also the aspect of pre-meditation because the defendant as a member of the family would have been well aware of the movements of the members of the family and when the young girl would likely be alone. There is also the fact that this offending occurred in the victim’s home where she is entitled to feel safe and protected from this kind of behaviour. There is also the issue of the breach of trust in the Samoan context because the defendant is an older male living in the family and older males are generally required to protect the younger females of a family.
12. The victim impact report filed reveals the impact on the victim has been profound. Her home environment in Samoa where she was under the care of her grandmother has been shattered and she has been re-settled in Australia with other relatives. Where she is undergoing counselling and therapy. There has been a considerable emotional toll on her as well as substantial physical costs incurred by the family as a result of the defendants offending.
13. There is no doubt that the effects of this kind of offending on one so young will take time to manifest. Equally there is no doubt that her life and mental well-being have been greatly affected by the defendants offending. The court does also not overlook the fact that the offending was accompanied by threats of violence.
14. Counsels agree that the defendants offending falls within the mid-range of Band B-2 of Lua. In other words, somewhere between 5 to 12 years imprisonment. Counsels submit a start point of 8 years in prison is applicable but given the large number of serious aggravating factors present in this matter I will apply a 10 year start point for sentence.
15. I bear in mind in terms of our Sentencing Act 2016 the sentence must hold the defendant accountable for the harm he has done to the victim as well as to the community at large. Further the sentence must denounce his conduct and in particular serve a deterrence purpose. In cases involving sexual violence against children under 18 the court must also pay due regard to section 8 of the Sentencing Act 2016 which lists factors which except for 8 (e) are all present in this matter.
16. As stated by this court in Police v MF [2022] WSSC 58 at paragraph 9, in an effort to combat the rising tide of sexual offending on young children by the males of this country Parliament increased penalties for sexual connection. The court there restated how sentences must hold people who commit this kind of offence on young girls accountable for their actions and must deter offenders from repeating this kind of conduct and send a message to other young men of this country. It should also send a message to the old men of this country.
17. From the start point of 10 years in prison as your counsel has ably pointed out you are entitled to deductions to reflect certain matters. Firstly for your clean record and previous good character; and for these purposes I accept what your counsel advances in his submission as to your background circumstances. A full deduction for this of 6 months will apply.
18. For the remorse apology and reconciliation that has been effected with the victim’s family, and I accept you could not participate personally in those because you were in custody, a further 6 months will be deducted from your sentence. After making those two deductions, leaves a balance of 9 years in prison.
19. For an early guilty plea offenders are normally given a further 25% deduction as the guilty plea has saved the courts and the prosecution and everyone precious time and the courts limited resources. But in this case your guilty plea means a 7 year old does not have to return to Samoa to testify and relive these sad incidents. For one as young as this young girl that would be a significant ordeal. I will therefore increase the deduction for your guilty plea to one-third of the remaining balance, in other words a period of 3 years, leaves a balance of 6 years in prison.
20. In respect of charges 1 to 4 of the Charging document you will be convicted and sentenced to 6 years in prison.
21. In respect of charges 5 to 8 of the Charging Document you will likewise be convicted and sentenced to 6 years in prison but that is to be served concurrently.
22. O lona uiga o le aofaiga o lou faasalaga i le toese mo mataupu uma nei e 6 tausaga e te nofo sala ai. Ae tatau na toese mai le 6 tausaga lena le taimi atoa lea sa e nofo taofia ai e faatalitali le faaiuga o lau Fa'amasinoga.
    

JUSTICE NELSON