Police v FP [2024] WSSC 83 (6 August 2024)

IN THE SUPREME COURT OF SAMOA
Police v FP [2024] WSSC 83 (06 August 2024)

Case name:	Police v FP
Citation:	[2024] WSSC 83
Decision date:	06 August 2024
Parties:	POLICE (Informant) v FP (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Senior Justice Nelson
On appeal from:
Order:	The court’s decision is therefore as follows: the most serious charge of sexual connection where the defendant rubbed his penis on the private part of the victim, he is convicted and sentenced to time already served which by my calculation is about 2½ years in prison. On the other two charges pursuant to section 73 of the Sentencing Act convicted and ordered to come up for sentence if called upon within a period of 12 months on the following conditions: that he be prohibited from any future contact with the victim or that part of the family and he is further prohibited from visiting her home village. In relation to the details and identity of the victim this will of course be permanently suppressed from publication including any other details that may serve to identify her.
Representation:	J. Leung-Wai for prosecution Defendant unrepresented
Catchwords:	Early guilty plea.
Words and phrases:	“Unlawful sexual connection with a child under 12 years”.
Legislation cited:	Sentencing Act 2016, s. 73.
Cases cited:	Attorney General v Lua [2016] WSCA 1.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

FP

Defendant

Counsel: J. Leung-Wai for prosecution
Defendant unrepresented

Sentence: 06 August 2024

SENTENCE

1. The defendant has pleaded guilty to three (3) charges of unlawful sexual connection with a child under 12 years of age. Firstly on or between 31^st April 2019 and 01^st November 2019 he had sexual connection by rubbing his penis on the private part of the complainant. Secondly same dates he had sexual connection by touching the private part and thirdly sexual connection by licking it. Charges to which the defendant has pleaded guilty.
2. This case has many puzzling aspects which despite many requests to the various prosecutors who have appeared remain by and large unexplained to this day. For example why the matter took three years before the defendant was charged, because the offending occurred in 2019. The defendant was not interviewed by Police until January 2022 and charges were not laid until February 2022 some three years later. I do not know at this stage whether this is because there was no complaint until 2022? And if so, what triggered the complaint and the Police investigation?
3. There has also been an extraordinary and unjustifiable delay in returning the defendant to be dealt with by the court. History from the file shows that after guilty pleas were entered in February 2022 the defendant was remanded in custody to await sentencing in March 2022. Due to COVID and other restrictions which included the courts inability to deal with defendants via video link because the lines of communication were severely disrupted and because of other technical difficulties, including absence of court and Police staff.
4. Result of this was the defendant’s case was overlooked by not only the court but also by the Prison Authorities. And this matter was not referred back to the court until April 2024 some two years later. Meanwhile the defendant was in custody at Tanumalala Prison. Defendant was only released on 02 July 2024 to await sentencing and by that time he had spent some 2½ years in custody awaiting sentence.
5. Clearly for one reason or another the defendant’s constitutional right to speedy justice has been beached. This is no fault of the defendant and has come about because of the systemic and other delays referred to above. I have no doubt this defendant was sitting at Tanumalala Prison wondering when his case will be dealt with but believing that he should serve punishment for his behaviour. Hence he failed to speak up about his case to the prison authorities.
6. The charges are grave and the offending is serious enough to warrant imprisonment in the normal cause of events in accordance with the established principles of Attorney General v Lua [2016] WSCA 1 as applied by this court for these kinds of cases. In this case however I am of the view that justice requires a different course of action be adopted.
7. I note the contents of your pre-sentence report including the latest one confirming that after you were released on bail you are now residing in a different part of the family. I also note the necessary apology and reconciliation has taken place and this was confirmed by the victim’s father in a letter dated 24 February 2022 and by the mother in the Victim Impact Report. Where the parents confirm the victim has suffered no ongoing trauma or consequence of what happened and how it is their wish not to remind the young girl of the past.
8. I also note that the defendant turned down the opportunity to obtain counsel and elected to enter early guilty pleas to the charge showing that he takes responsibility for his actions; and this is an expression of his remorse for what he did. I am also aware from previous callings that the defendant had some medical issues while he was being detained in custody. I believe he has learnt his lesson and that he will never do this sort of thing again. E sa’o a’u FP? (Defendant: o lea lava).
9. Aua e te toe faia se mea fa’apea. Maua lou avanoa i le asō ona o le tulaga lea o lea ua ova ma le 2½ tausaga o taofia oe e fa’atalitali le fa’aiuga o lau mataupu. Ae a fa’apea e te toe tula’i mai luma o le fa'amasinoga i ituaiga mea fa’apenei, ia e sau ma lou mautinoa i le tulaga e te o’o iai. Ua e malamalama? (Defendant indicated he understood).
10. The courts decision is therefore as follows: the most serious charge of sexual connection where the defendant rubbed his penis on the private part of the victim, he is convicted and sentenced to time already served which by my calculation is about 2½ years in prison.
11. On the other two charges pursuant to section 73 of the Sentencing Act convicted and ordered to come up for sentence if called upon within a period of 12 months on the following conditions: that he be prohibited from any future contact with the victim or that part of the family and he is further prohibited from visiting her home village.
12. In relation to the details and identity of the victim this will of course be permanently suppressed from publication including any other details that may serve to identify her.
    

SENIOR JUSTICE NELSON