Police v NLF [2023] WSSC 76 (17 November 2023)

IN THE SUPREME COURT OF SAMOA
Police v NLF [2023] WSSC 76 (17 November 2023)

Case name:	Police v NLF
Citation:	[2023] WSSC 76
Decision date:	17 November 2023
Parties:	POLICE (Informant) v NLF (Defendant)
Hearing date(s):
File number(s):	Charge 1 per Charging Document dated 17 July 2023
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Fepulea’i A. Roma
On appeal from:
Order:	On the charge of sexual violation by unlawful sexual connection, you are convicted and sentenced to 4½ years imprisonment. Time that you have spent in custody pending sentence to be deducted.
Representation:	E. Lam for Prosecution T. Lei Sam for the Defendant
Catchwords:	Reconciliation – early guilty plea -
Words and phrases:	“Sexual violation by unlawful sexual connection” – “familial connection”– “victim suffers from a mental disability” – “young victim” – “breach of trust” – “age disparity” – vulnerability of victim” – “custodial sentence”.
Legislation cited:	Crimes Act 2013, ss. 49(b)(3); 50(b); 52(2).
Cases cited:	Police v. Misipati [2017] WSSC 102; Police v. Mafutoa [2017] WSSC 108.
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

P O L I C E

Informant

A N D

NLF, male

Defendant

Counsel: E. Lam for the Prosecution

T. Lei Sam for the defendant

Sentence: 17 November 2023

SENTENCE

The interim order issued to suppress the publication of the victim’s and your names, village and details that may reveal your identities because of your relationship is made a permanent Order.

Charges

1. You appear this afternoon for sentence on one charge of sexual violation by unlawful sexual connection. The maximum penalty for this offence is 14 years imprisonment. You pleaded guilty to the charge on the 31st August 2023 when finalised.

Offending

2. From the summary which you accept through counsel, you are a single 40 year old male. The victim is a 15 year old female. She is your cousin and suffers from mental disability. She was living with her mother at [x-village]. On the 28^th October 2022 she came to [xy-village] with her mother to visit her father and siblings. The mother then returned to [x-village] whilst she stayed with her father and siblings.
3. The following evening around 7pm, the victim went for a bath at the pool on the same land that both your house and that of the victim’s family are located. You walked past and saw the victim at the pool. You approached and led her to your sister’s open house nearby where no one was and the lights were switched off. You removed her lavalava, made her lie on the floor then quickly removed your clothes and laid on top of her. You then placed your penis on her anus and made thrusting movements. According to the summary the victim was silently crying.
4. Meanwhile the victim’s 13 year old brother and 9 year old cousin had come to the pool to fetch drinking water. They were using a flash light. They found the victim’s basin near the pool but could not see her where she was earlier. The brother immediately searched for his sister aiming the torch around the area including your sister’s house nearby. He saw you lying naked on his sister. You immediately got up and left.
5. The brother and cousin then took the victim home and told adult members of their family. The summary says that the incident was then reported to police but does not say exactly when. Clear from the summary however is that you were apprehended and cautioned on the 15^th June 2023, a period of 8 months after the incident.
6. You told Probation that the victim tried to seduce you and you told her to wait until night time. You also told Probation about other incidents of sexual intercourse between you the victim. I am mindful that there is just one charge against you. I also reject your suggestion that the victim seduced you and consented. Not only have you admitted the charge, you are also well aware of not only the victim’s young age but mental disability from the fact that she is a close relative, she being your cousin.

Victim

7. The victim was 15 years of age at the time of the offending. She suffers from mental disability confirmed by an assessment by Dr George Tuitama. Her mother told prosecution in the victim impact report that she attended school for 2 years. The victim also says in the victim impact report that she was angry and scared of what you did to her. Your parents have apologised to the victim’s parents. You are family and the victim’s parents have forgiven you. But they also seek that you be sentenced for what you did.

Aggravating Factors

8. In relation to the offending the aggravating features are:
   • (i) there is a familial relationship between you and the victim, the victim is your cousin and you were both living on the same land at the time of the offending;
   • (ii) the age disparity of 23 years;
   • (iii) the vulnerability of the victim given her age and in particular her mental disability;
   • (iv) the breach of trust given the relationship between you and the victim. As a much older cousin of the victim, you were to protect her not abuse her sexually as you did;
   • (v) impact of your offending on the victim.
9. I also consider personal to you as offender your lack of remorse shown by your admission to Probation that the sexual relationship between you and the victim has occurred on previous occasions in an attempt to downplay the seriousness of your offending.

Mitigating Factors

10. I consider the following:
    • (i) your early plea of guilty to the charge;
    • (ii) the reconciliation which the victim impact report confirms;
    • (iii) your personal circumstances - you are a 40 year old single male who was living with his parents. You ended your formal education at Year 10 level. You have had a number of jobs to assist your family. Prosecution say that you have a previous conviction for an unrelated offence 21 years ago. For the purposes of this matter, I will sentence you as a first offender.

Discussion

11. In view of the aggravating features of your offending, I consider that accountability, denunciation and deterrence should be the primary purposes of sentencing. Prosecution recommend a starting point of 8 years. I have reviewed the cases cited in particular Police v. Misipati [2017] WSSC 102 and Police v. Mafutoa [2017] WSSC 108 where the victims also suffered from mental disability.
12. I accept that 8 years is an appropriate starting point. I make these deductions. For the reconciliation I deduct 6 months. For your personal circumstances I deduct 12 months. The remainder after those deductions is 6½ years. I make a final deduction of 2 years for your plea of guilty entered at the earliest opportunity. The end sentence is 4½ years.

Result

13. On the charge of sexual violation by unlawful sexual connection, you are convicted and sentenced to 4½ years imprisonment. Time that you have spent in custody pending sentence to be deducted.

JUSTICE ROMA