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Police v TLF [2024] WSSC 15 (25 April 2024)

IN THE SUPREME COURT OF SAMOA
Police v TLF [2024] WSSC 15 (25 April 2024)


Case name:
Police v TLF


Citation:


Decision date:
25 April 2024


Parties:
POLICE (Informant) v TLF (male, defendant)


Hearing date(s):



File number(s):
Charge 1, (b) & (c) per Charging Document dated 28 August 2023.


Jurisdiction:
Supreme Court, CRIMINAL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Fepulea’i A. Roma


On appeal from:



Order:
I sentence you as follows:

(a) On the charge of incest, you are convicted and sentenced to 3 ½ years’ imprisonment;
(b) On the charge of sexual connection with a dependent family member, you are convicted and sentenced to 2 ½ years’ imprisonment;
(c) On the charge of sexual connection with a young person, you are convicted and sentenced to 2 years’ imprisonment;
(d) All three sentences will be served concurrently, less time spent in custody.


Representation:
H. Apisaloma for Prosecution
S. Chan Chui for the Defendant


Catchwords:
Sexual connection with a young person, Sexual connection to a dependent family member, Incest


Words and phrases:



Legislation cited:
Crimes Act 2013, ss.59(1) & 50(b), s.56(1) & s.55(1) & (3)


Cases cited:



Summary of decision:

THE SUPPRESSION ORDER ISSUED EARLIER PROHIBITING PUBLICATION OF THE NAMES AND VILLAGE, AND ANY DETAIL THAT MAY REVEAL THE IDENTITIES OF THE VICTIM AND DEFENDANT CONTINUES.


IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


BETWEEN


P O L I C E


Informant


A N D


TLF male


Defendant


Counsel: H. Apisaloma for Prosecution

S. Chan Chui for Defendant


Sentence: 25 April 2024


SENTENCE

Charges

  1. Following a defended hearing on the 27th March this year, I found you guilty of the following charges in a decision handed down on the 5th April:
  2. You now appear for sentencing. The victim is your biological granddaughter.

Offending

  1. The court heard that in the afternoon of father’s day in August 2022, two of your grandchildren aged 14 and 13 years at the time, found you with the victim in a room at your home. Your granddaughter was naked and lying on the bed. You were licking her vagina. You were alerted when your two grandchildren made noise, they ran out of the room.
  2. The incident was not reported until three months later when a dispute arose between you and one of your sons whom you chased off the land and has since lived with his family at [xy-village]. In the presentence report you maintain your innocence and claim that the allegations were concocted by your son and his step wife. The evidence of your grandchildren at trial said otherwise and I have explained my reasons for accepting that evidence.

The Victim

  1. The victim was 12 years and 9 months at the time of the offending. She suffers from a permanent intellectual disability which impairs her mental cognition and social skills. Her condition was visible when she was called to testify. She was unable to communicate or give evidence in court, but she was put through the task of trying to explain what happened despite her disability.

Aggravating Factors

  1. The aggravating features of your offending are as follows:

Mitigating Factors

  1. In mitigation of penalty, I consider the following:

Discussion

  1. This is another serious case of sexual abuse within the home where daughters and granddaughters must be protected. In all cases of this type of offending, the Court has imposed deterrent sentences of imprisonment, the length depending on the circumstances of each case.
  2. What you did was unacceptable deplorable and unlawful. The impact on your family and in particular, your young granddaughter who suffers a mental disability will last a long time.
  3. In accordance with the court’s sentencing practice in similar cases, the sentence must denounce your conduct and deter other males from sexually abusing young females including daughters and granddaughters. I say again that these are very serious charges. Incest has a maximum penalty of 20 years imprisonment, the damage that this type of offending does to the family and victims are significant considerations.
  4. Prosecution recommend a start point of 8 years. I have considered each of the cases cited in their submission. None of those cases involved a grandfather and granddaughter relationship; and the age disparity in your case is much higher. In saying that I also consider that your case involves a single incident.
  5. Mr Chan Chui on the other submits that the court considers as lead charge sexual connection with a young person, the less serious of the 3 charges in terms of penalty. Counsel further argues that 3 years should be the appropriate start point. I simply do not accept the submission by counsel and take the more serious offence of incest as lead charge. I bear in mind however that the incest in your case is by sexual connection, and not one involving sexual intercourse.
  6. I adopt as the appropriate start point 8 years as recommended by prosecution. I make these deductions. For your personal circumstances including your age and previous good character, I deduct 1½ year. For the references and testimonials provided through probation, I deduct a further one year. For your medical condition confirmed by the medical report of Dr. Navy Collins, I deduct 2 years. I make no other deductions. The end sentence is 3½ years.

Result

  1. I sentence you as follows:

JUSTICE ROMA


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