Police v SL [2024] WSSC 85 (2 August 2024)

IN THE SUPREME COURT OF SAMOA
Police v SL [2024] WSSC 85 (02 August 2024)

Case name:	Police v SL
Citation:	[2024] WSSC 85
Decision date:	02 August 2024
Parties:	POLICE (Informant) v SL (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:	On this charge you will be convicted and sentenced to 3 years in prison, remand in custody time to be deducted. In addition, the defendants name to be entered on the Sex Offenders Register with the special condition that on release he is not permitted to be in the vicinity of the complainant or any other young children or within twenty meters thereof.
Representation:	T. Fesili for prosecution D. Roma for defendant
Catchwords:	First offender – banished from village.
Words and phrases:	“indecent act on a child” – significant age disparity – very young victim – pre-meditation – breach of trust – familial connection – sentencing bands.
Legislation cited:	Crimes Act 2013, ss. 56(3); 58(3); Criminal Procedure Act 2016, s. 93; Family Safety Act 2013, s. 17; Sentencing Act 2016, s. 8(2)(a)(b); United Nations Convention on the Rights of the Child.
Cases cited:	Key v Police [2013] WSCA 3; Police v MF [2022] WSSC 58.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

SL

Defendant

Counsel: T. Fesili for prosecution
D. Roma for defendant

Sentence: 02 August 2024

SENTENCE

1. The uncontested Police Summary of Facts says the defendant is a 58 year old male, single currently residing in (xy-village). The victim is a 7 year old female. The defendant’s niece is the victim’s mother. In accordance with the usual practice of the court the details that may serve to identify the victim in this matter will be permanently suppressed. Including her village and the village where this incident occurred.
2. At the time of the offending the defendant was living with his sister and her children including the victim and her younger brother. On the day of the incident the older members of the family were not at home, only the defendant the victim and the victim’s younger brother. This was on Thursday, 26 October 2023.
3. The summary says while the defendant was inside the outdoor toilet he called the victim to bring some water to flush the toilet. The victim obeyed and went to fetch the bucket from the toilet. As the victim was getting the bucket the defendant grabbed her hand and stopped her. The defendant pulled the victim towards him and placed his genitals inside her mouth causing the victim to vomit.
4. After which the defendant told the victim not to tell anyone otherwise he will strangle her. The summary says the victim ran out of the toilet crying and told her friend’s mother who lives across the road who reported it to the Police.
5. On 04 December 2023 the defendant through his counsel pleaded not guilty to the charge and the matter was adjourned to July this year for hearing. A month prior to hearing the defendant through his counsel vacated his not guilty plea and pleaded guilty to the charge.
6. The charge is one count of indecent act on a dependent family member under the age of 21 years pursuant to section 56(3) of the Crimes Act 2013. The defendant has no prior convictions.
7. This is another astonishing case of an older mature male of the family sexually abusing a younger female relative, in this case a 7 year old.
8. In relation to the charge the original charge to which the defendant pleaded guilty as noted is indecent act on a dependent family member under 21. However I note the uncontested Police summary does not disclose any dependency of the victim on the defendant. Dependency is of course an essential ingredient of an offence under section 56(3).
9. I am therefore exercising the courts discretion under section 93 of the Criminal Procedure Act 2016 to amend that charge to conform with the evidence by amending the charge to that of indecent act on a child pursuant to section 58(3) of the Crimes Act. That charge carries the same maximum penalty at law as the charge pleaded to by the defendant. I do not find any prejudice occasioned to the defendant by this change and I will accept his guilty plea as being guilty to that charge. Counsels should pay more attention to the charges that are brought before the court.
10. The aggravating features of the offending are correctly noted by the prosecution in their sentencing submission. The significant age disparity between the parties, the very young age of the victim, the premeditation in the offending to the extent that the defendant knew only the victim and her younger brother were at home and no adults were round. He saw his chance, he took it.
11. There is also the aspect of the trust the victim placed in him which is clear from her unquestioning obedience of his instruction to bring a bucket of water to flush the toilet. He was living in the family as an older male relative of the family. I also note the context of this offending is within a family relationship and section 17 of the Family Safety Act 2013 therefore applies.
12. The court also does not overlook the effect the offending has had on the victim as outlined in her Victim Impact Report where she says:
    • “Sa ou fefe ma ou tagi i le taimi sa uma ai ona fai nei amioga ia te a’u. Sa ou alu loa ma ou taoto ma ou tagi i lo’u fefe ae maua atu a’u e si o’u tei lea ou te tagi ma pulou i lo’u ie’afu. Sa alu loa si o’u tei lea ta’u i lo’u aunty ma iloa ai le mataupu.
    • O le taimi nei o lea ua nofo i totonu o le To’omaga (SVSG) ona o le mataupu. Ou te fiafia foi e nofo i totonu o le To’omaga e le fasia so’oa a’u e SL. Ou te le fia vaai ia SL pe tautala atu iai, ou te fefe nei toe tupu le mea sa ia faia ia te a’u.”
13. Also applicable to this matter are the factors outlined in section 8(2)(a)(b) of the Sentencing Act 2016. How they apply in this case can be illustrated by Police v MF [2022] WSSC 58 see paragraph 10 of that decision. Those factors further aggravate the offending.
14. All these provisions are national recognitions of the United Nations Convention on the Rights of the Child (CRC) which applies in this country. Which requires that a child be allowed to grow up in a family environment full of happiness love and understanding not intimidation and sexual misconduct.
15. A custodial sentence is clearly required for this matter to hold the defendant accountable to society and to the victim for his actions. And to denounce the defendant’s behaviour and send the necessary deterrent message to him and to any likeminded predators namely that sexual abuse of young children is a sure way to go to Tanumalala.
16. Prosecution have submitted that the Key v Police [2013] WSCA 3 sentencing bands apply to this matter but it is significant that the charge here is one of indecent act not rape or unlawful sexual connection.
17. The maximum penalty for your offending is 14 years in prison. I agree however that considering all factors an appropriate start point is 5 years.
18. As highlighted by your counsel you are entitled to certain deductions for mitigating factors from that start point. Clearly you have a clean record you are a first offender. But in relation to your background the testimony from your village pulenu’u is very unfavourable. He says you do not support village activities, you have no monotaga in the village, you drink every day and you are a potential threat to the children of the village. This is hardly a reference of previous good character.
19. According to the pre-sentence report you were however employed and your sister says you are reliable and that they use you as a babysitter for her children. Given what has occurred this is a matter that they should seriously reconsider. In these circumstances I cannot give you full credit for a clean record and previous good character. But I will allow a half deduction of 3 months to reflect those matters.
20. What the pre-sentence report does confirm is your banishment from the village as a result of this matter. For that the court will allow a 9 months deduction from your sentence, leaving a balance of 4 years in prison.
21. As you have heard from other cases normally there is a one-quarter balance of sentence reduction for a defendant’s guilty plea. But your file shows that your guilty plea was not entered at the first available opportunity and was only entered a month before trial. I note however that in this case the victim is a 7 year old child. Clearly requiring her to appear and testify and relive such an unpleasant incident and experience would be re-victimising her all over again. For that reason and for that reason alone I will apply the twenty-five percent reduction to your sentence that leaves a balance of 3 years in prison.
22. On this charge you will be convicted and sentenced to 3 years in prison, remand in custody time to be deducted.
23. In addition, the defendants name to be entered on the Sex Offenders Register with the special condition that on release he is not permitted to be in the vicinity of the complainant or any other young children or within twenty meters thereof.
    

SENIOR JUSTICE NELSON