Police v MM [2025] WSSC 19 (2 April 2025)

IN THE SUPREME COURT OF SAMOA
Police v MM [2025] WSSC 19 (2 April 2025)

Case name:	Police v MM
Citation:	[2025] WSSC 19
Decision date:	2 April 2025
Parties:	POLICE (Informant) v MM (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinu’u
Judge(s):	Senior Justice Nelson
On appeal from:
Order:	For these three charges, as a total sentence MM, you will be convicted and sentenced to 12 months in prison. Any remand in custody time is to be deducted from that
Representation:	L. Faasii for Prosecution S. Ainu’u for the Defendant
Catchwords:	Sexual connection - occurred multiple times - breach of trust - first offender – banishment - custodial sentence.
Words and phrases:	“Victim under 16 years of age” – “application for a discharge without conviction”.
Legislation cited:
Cases cited:	Police v Lie [2022] WSSC 44
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

MM

Defendant

Counsel: H. Apisaloma for prosecution
V. Afoa for the defendant

Sentence: 02 April 2025

SENTENCE

1. The defendant pleaded guilty to three (3) charges. Firstly on 08 May 2024 that he had sexual connection with the complainant, a female under 16 years of age. Second charge is on the same date, same place also having sexual connection with the same young person a female under 16. Third charge that on the 9^th of May same place a similar charge.
2. I will issue a permanent suppression order for the protection of the details of the underage complainant. This will extend to suppression of her name and any details that may identify her and the order applies to all forms of social media.
3. The uncontested summary of facts from the Police says the defendant is a 30 year old male married with four (4) children. The complainant was then 15 years of age and was attending the local college. She was in Year 11. The defendants wife is the complainants mother’s first cousin and at the time of the offending all parties were living on the same land but in different houses.
4. In relation to the first charge the summary relates that this occurred between 12:00 and 4:00 am in the morning of the 08^th of May while the victim was sleeping in their open fale together with other relatives including her mother. The defendant approached the house, woke her up and instructed her to accompany him to another house at the back of the property. The complainant complied, went to the back house where the two of them talked. The defendant kissed the complainant, removed her clothing, laid her down on her back and engaged in sexual intercourse. After which the complainant returned to where she had been sleeping.
5. In respect of the second charge the summary relates that the next day, the complainant went to school. The school finished around 3:00pm and the complainant and a friend were walking home via a different route from their usual path. The defendant was in the same area and he called the complainant over and the pair went into the bush while the complainants friend waited at the seawall. It is likely that the defendants presence in the area was no coincidence and that this was part of an arrangement between the defendant and the complainant. In the bush the parties again engaged in consensual sex, hence the second charge on the same day.
6. In relation to the third charge the summary says the next day the 9^th of May around 2:30 pm the complainant and her friend were again walking home from school via the same pathway. The defendant approached them and gave his phone to the complainants friend to use while he and the complainant went into the bush where they engaged in consensual sexual intercourse. But on this occasion the pair were discovered by a villager and the defendant begged the villager not to tell anyone what he had seen.
7. But when the complainant and her friend arrived home, her friend was questioned by the complainants mother as to why they were late from school and she eventually told her what had happened. This led to the matter being referred to the Police and the three (3) charges against the defendant.
8. The defendant initially pleaded not guilty to all three charges but on trial day he changed those pleas to guilty.
9. The defendants counsel has asked for a discharge without conviction for his client. A discharge without conviction is in law an acquittal on all three charges. The application seems substantially based on the authority of Police v Lie [2022] WSSC 44 where a 17 year old defendant was discharged without conviction on charges of sexual connection with a 15 year old complainant. But that case can be distinguished from the present on many grounds. Firstly the defendant there was a 17 year old boy, not a 30 year old married man with children. Secondly the age difference between the parties in that case was 2 years, here the defendant is twice the age of the complainant. And in that case there was only one count of sexual connection with an underage girl, here there are three counts indicating a clear pattern of repetitive offending.
10. In addition the sentencing judge in that case was very clear as to the reasons he discharged without conviction. In paragraph 17 of his judgment he notes that by the time that defendant was sentenced, he had already spent 7 months in custody. Police v Lie is a decision based on its particular facts.
11. The offending in this matter is grave and the circumstances are also serious. And the court will not hesitate to protect young girls being taken advantage of by older married men. There are many decisions of this court to that effect and the reasons for it.
12. Further there is no evidence in this case that a conviction for this defendant will affect his ability to provide for his family as a fisherman or otherwise. The application for discharge in this case does not pass the first two hurdles for applications of this sort. It is frivolous and must be disregarded.
13. In assessing the criminality of your conduct MM the court takes into account not only the difference in age between you and the complainant but also the fact that you are sexually far more experienced. You are a married man with four (4) children. You chose to do this to a relative of your wife who was living on the same land. You were a faiāvā, married into the family. You did this to a member of your extended family which is a gross breach of trust as well as of cultural norms applying to older males of families especially those married into the family. And you did this not once MM but on three (3) different occasions on consecutive days. You only stopped because you were discovered by a villager on the third occasion. I have no doubt your trysts were planned and pre-meditated to coincide with when the complainant was alone or coming home from school.
14. The effect of your offending is that this young girl has had to leave her village and now lives with the relatives of her father in Upolu, she was originally from Savaii. No question the court must continue to send the loud and clear message to all men, married or otherwise to leave underage girls alone. And if you do not heed this warning from the courts then you do so at your own peril.
15. An imprisonment penalty is entirely appropriate to denounce the defendants conduct and to send the necessary message to him and to everyone else. And to hold the defendant responsible for his offending and to reflect the seriousness of his actions.
16. The maximum penalty for each count is 10 years in prison. The usual start point for this kind of offending varies from 12 months to 3 to 4 years in prison.
17. Given the factors referred to above the sentence will start at 3 years in prison. But from that you are entitled to certain deductions for mitigating factors as pointed out by your counsel. Firstly for your good and clean record as outlined in the pre-sentence report which is supported by numerous character references. The usual deduction of 6 months will apply.
18. For the apologies and reconciliations made, I note these were made on your behalf but by other people. For some reason you chose not to participate. You were not in Police custody, you were on bail and no explanation has been given as to why you did not participate in the customary apology. That indicates you are not as remorseful as your counsel has submitted. A limited deduction of 3 months will apply.
19. For the banishment imposed by your two villages of residence, that is in my opinion a significant penalty which the court must have regard to as a matter of law. A 12 months deduction will apply to reflect those factors. That means you receive total deductions of 21 months from the start point of sentence. Leaving 15 months in prison.
20. The last deduction you are entitled to is for your guilty pleas to the charges which has saved the courts limited resources and precious time and the complainant the agony of a trial. Normally there is a twenty-five percent (25%) deduction from the balance of sentence for guilty pleas but in your case you only changed your plea on trial day. I therefore can only give you a limited deduction of 3 months. That leaves 12 months in prison.
21. For these three charges, as a total sentence MM, you will be convicted and sentenced to 12 months in prison. Any remand in custody time is to be deducted from that.

SENIOR JUSTICE NELSON