Police v SL [2024] WSSC 79 (30 August 2024)

IN THE SUPREME COURT OF SAMOA
Police v SL [2024] WSSC 79 (30 August 2024)

Case name:	Police v SL
Citation:	[2024] WSSC 79
Decision date:	30 August 2024
Parties:	POLICE (Informant) v SL (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Niavā Mata K. Tuatagaloa
On appeal from:
Order:	The accused is convicted and sentenced as follows: (i) Sexual connection with child under 12 years – 6 months imprisonment; (ii) Incest – 12 months' imprisonment The sentences to be served concurrently.
Representation:	H. Apisaloma for Prosecution A. Matalasi for the Accused
Catchwords:	Assessor trial – incest.
Words and phrases:	“Sexual connection with a child under 12 years old”
Legislation cited:	Crimes Act 2013, ss. 55; 58(1).
Cases cited:	Attorney General v Lua [2016] WSCA 1; Police v JP [2021] WSSC 62 (3 December 2021); Police v PH [2019] WSSC 83 (20 September 2019).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

SL

Accused

Counsel: H Apisaloma for Prosecution

A Matalasi for the Accused

Sentence: 30 August 2024

S E N T E N C E

Suppression

The victim's name is suppressed, for the victim is of very young age and is extended to the accused for the close familial connection with the young victim.

1. The accused was found guilty by a panel of assessors on (i) one count of sexual connection with a child under 12 years old pursuant to s. 58(1) of Crimes Act 2013 and (ii) one count of incest pursuant to section 55. The sexual connection was by rubbing the girl’s vagina with fingers.
2. The accused elected not to give evidence. He was found guilty on the evidence of the young victim alone.
3. The accused now appears for sentence. The penalty for sexual connection with a child under 12 is maximum life imprisonment while penalty for incest is maximum 20 years imprisonment.
4. The evidence as established and accepted by the assessors are:
   • The offending took place at the young victim’s house at (x-village) on or between 31 December 2020 and 1^st January 2022;
   • The accused who lives at (y-village) was visiting the victim’s family;
   • The accused son is the young victim’s father;
   • The offending took place in the morning on one of the days between 31 December 2020 and 1^st January 2022 on the dining table in the kitchen of the victim’s house;
   • The accused was sitting at the table when the young victim went past to go to the bathroom whereby the accused pulled down her panties spat on his finger and then rubbed the young victim’s vagina. Shortly thereafter, the accused pulled the young victim’s panties up and told her not to tell anyone. The young victim told her mother sometimes in 2023.
   • The offending was said to have taken place at home while the victim’s parents and siblings were all at home, the parents in their bedroom and the siblings watching television in the sitting room.

The accused

5. The accused was between 56 and 58 years old at the time of the offending. According to the Pre-Sentence Report (“PSR”), the accused has ten (10) children from various relationships. There are various written testimonials from the sa’o of his family who says that the accused is a committed and serviceable, member of his family; his religious leader described him as a reliable member; and the village pulenuu of (y-village) who said that the accused has never been penalised by the village. The accused mother in the PSR described him as a loving, dedicated, amusing and humble person within their family.

The victim

6. The young victim was almost five (5) years old at the time and is now nine (9) years old. The victim in the Victim Impact Report (VIR) says that her vagina hurts at the time the accused was rubbing it with his fingers and that she was very scared. The young victim says she hates the accused and no longer wants to call him her grandpa.

Discussion

7. Cases of sexual offending against young girls being committed within their own home environment at the hands of a family member is frowned upon especially when it’s happening in the home where the child should feel safe especially amongst family members becoming prevalent. The Court denounces such inappropriate and unacceptable behaviour. 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.
8. A child between the age of 12 and 16 years is deemed or regarded by Parliament as being unable to appreciate the significance or quality of such act as contained in the present charge. Parliament regarded people the age of the victim to be incapable of appreciating the significance or quality of the act creates an unacceptable risk of injustice. The rationale is to protect young girls from exploitation rather than declaring girls of the relevant age are unable to appreciate the significance or quality of sexual acts.
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.

10. The sentencing cases of Police v JP^[2]and Police v PH^[3] referred to by Prosecution are like the present case in that both accused are much older, and the victims are very young with the age disparity ranging from 35 - 60 years. The starting points were 4 years and 3 years with end sentences of 3 ½ years and 3 years. The Prosecution recommends for a starting point of 6 years (top end of Band one).
11. These two cases are distinguished from the present for the close familial relationship between the accused and the victim of grandfather and granddaughter. This in my view is the most aggravating.
12. Counsel for the accused quite rightly acknowledged in her submissions that considering the maximum penalty for the offence of sexual offending with girls under 12 years, the appropriate punishment should reflect the seriousness of the offence. Counsel proposed 2 ½ years appropriate starting point, however, submits for the Court to consider a combination of sentence approach of a custodial and non-custodial where the end sentence will be less than 2 years. Counsel refers to reasons in paragraph [15] of her submissions as to why the Court should consider a combination of sentences. I do not agree.
13. I accept the following to be the aggravating features of the offending:
    • (a) Vulnerability of the victim due to the age disparity of 53 years between the victim (5 years old) and the accused (58 years old);
    • (b) Familial relationship – the accused is the young victim’s paternal grandfather. As such there was also a breach of trust;
    • (c) Place of offending – the offending took place at the young victim’s home where it is supposed to be a haven for the young victim.
14. The only mitigating factor is the prior good character or the first offender status of the accused and at 60 years old.
15. The Court will take a totality approach and take the unlawful sexual connection with the penalty of maximum life imprisonment as the lead offence although, in the Samoan context the offence of incest is most offensive and aggravating.
16. In the present matter the offending was brief, there was only skin to skin touching of the young victim’s genital, the victim did not suffer any physical injuries and the offending itself was not pre-meditated but opportunistic. I find that the culpability level of the accused to be low. The Court of Appeal in Lua at paragraph [25] made the following observation relevant to the circumstances of the present offending:
    • ...that band one has a range from 2-6 years reflected the diversity of sexual connection. The least culpable offending will comprise of a single skin to skin touching of the genitalia or anus which if limited duration. In the absence of other aggravating factors, offending at this level may well warrant a starting point as low as 2 years before personal mitigating factors are considered.
17. In the circumstances of the lead offence, I find appropriate the starting point of two (2) years and make the following deductions: I deduct 12 months for the accused prior good character; this being his first offence at age 60 years. I accept that he is remorseful and deduct a further 3 months; a further 3 months for the written testimonials provided on the accused's behalf which further confirms that he was indeed a person of good character for 60 years of his life. The end sentence is 6 months’ imprisonment for the lead offence of sexual connection with a girl under 12 years.
18. As mentioned earlier, I find the offence of incest most offensive although the maximum penalty is 20 years as compared to life imprisonment for the lead offence of sexual connection with child under 12 years. I find 12 months' imprisonment appropriate.

Sentence Imposed

19. The accused is convicted and sentenced as follows:
    • (i) Sexual connection with child under 12 years – 6 months imprisonment;
    • (ii) Incest – 12 months' imprisonment
20. The sentences to be served concurrently.
    

JUSTICE TUATAGALOA

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^[1] Attorney General v Lua [2016] WSCA 1, at paragraph 24
^[2] Police v JP [2021] WSSC 62 (3 December 2021)
^[3] Police v PH [2019] WSSC 83 (20 September 2019)