Police v P.A. [2025] WSSC 22 (17 April 2025)

IN THE SUPREME COURT OF SAMOA
Police v P.A [2025] WSSC 21 (17 April 2025)

Case name:	Police v P.A
Citation:	[2025] WSSC 21
Decision date:	17 April 2025
Parties:	POLICE (Informant) v P.A (Defendant)
Hearing date(s):
File number(s):	2024-06401
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tuatagaloa
On appeal from:
Order:	The defendant is convicted and sentenced to 2 years and 3 months.
Representation:	Attorney General’s Office for Prosecution M. Lemisio for the Defendant
Catchwords:	Unlawful sexual connection – abuse of trust – abuse of power – pre-meditated – attempt to conceal – first offender – early guilty plea – apology – remorseful – custodial sentence.
Words and phrases:	“Sexual intercourse with a minor (under 16 years of age)” – “defendant related to victim through marriage” – “victim became pregnant”.
Legislation cited:	Crimes Act 2013, ss. 50(a); 52(2); 58; 59; 59(1).
Cases cited:	Police v AG [2024] WSSC 95 (11 November 2024). Police v Iese Siaosi (Unreported judgment of Tuala-Warren J dated 26/11/19 in the Supreme Court of Samoa).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

P.A

Defendant

Counsel: Attorney General’s Office for Prosecution
M Lemisio for the Defendant

Date: 17 April 2025

SENTENCE OF TUATAGALOA J

Charges

1. The defendant appears for sentence on one count of sexual intercourse with a girl below 16 years of age pursuant to section 59(1) of the Crimes Act 2013 that occurred on or between 31 January 2024 and 1 May 2024.

Sexual Offending under section 59

2. The offending by definition falls under section 50(a) of the Crimes Act 2013 as “connection occasioned by the penetration of the genitalia or the anus of any person – (i) any part of the body of any other person; or(ii)....” Section 59 is the offence provision with sexual conduct with young person under 16. Unlawful sexual connection generally is punishable by up to 14 years’ imprisonment under s. 52(2) whereas s. 59(1) is maximum 10 years’ imprisonment.
3. Offences under section 58 and section 59 are unlawful sexual offences. The law makes it unlawful simply for the age of the victims are below 12 years (s58) or below 16 years (s59). The victim’s consent to these offences is not a requirement. That is, a defendant cannot come to the court and say that the young victim consented or that she initiated sexual activity that took place. The purpose of these provisions as reiterated by the Court is not only to protect young girls from being taken advantage of by mature and older males but also to protect young girls themselves because of their lack of maturity and necessary judgment to give or make fully informed consent to sex and its potential consequences.

The offending

4. The summary of facts provided by Prosecution was read out and confirmed by the defendant which says:
   • The defendant was married to the victim’s cousin. Both the victim and defendant were living in different houses but in the same compound or land. The victim resides with her parents while the defendant and his wife with their two children reside at the victim’s grandmother’s house.
   • Prior to the offending the defendant would occasionally drop off the victim and her siblings to school. Sometime between 31 January 2024 and 1 March 2024 at around 6am the defendant approached the victim while she was leaving for school and told her to wait for him at the Savalalo bus stop and he would drop her off to school. The victim took the bus from home and waited for the defendant at the Savalalo bus stop where the defendant picked her up to drop her off to school. However, instead of taking the victim straight to school, the defendant took her to the EPC substation carpark at Tanugamanono. He parked up and asked the victim to have sexual intercourse with him. According to the summary of facts the victim agreed.
   • The defendant asked the victim to remove her clothes and she did. The defendant then had sexual intercourse with the victim. Afterwards, the defendant noticed blood dripping from the victim’s vagina gave the victim a piece of cloth to clean herself. Afterwards, the defendant dropped the victim off at school gave the victim $10 and told her not to tell anyone what they just did.
   • The victim became nauseous and unwell a few weeks after and was taken to the hospital by her mother where she was discovered to be pregnant. The matter was then brought to the attention of the police.
5. The defendant is 31 years of age and the victim was 14 years’ old at the time in Year 10 at ** College.

Aggravating factors

6. I find the following to be the aggravating factors of this offending:
   • Age disparity of seventeen years between the defendant’s age and that of the victim. The age disparity also shows the vulnerability of the victim;
   • Domestic Violence/Familial relationship albeit by marriage. The defendant is married to the victim’s cousin;
   • Abuse of power and trust. The circumstances of the offending indicate an abuse of position and influence the defendant had over the victim;
   • The offending is pre-meditated. The defendant orchestrated the offending by instructing the young victim to meet him under false pretenses that he would take her to school, instead he chose a secluded location at that time of the morning and committed the offence.
   • Impact of the offending. The victim got pregnant.
   • Attempt to conceal. The defendant afterwards gave the victim $10 and told her not to tell anyone.

Mitigating factors

7. I consider the following to be the mitigating factors:
   • (i) Prior good character or no previous convictions;
   • (ii) Early guilty plea;
   • (iii) Apology by the defendant’s parents to the victim’s parents;^[1] and
   • (iv) Remorsefulness.
8. Defense Counsel in his submissions refers to the defendant and young victim being in a boyfriend – girlfriend relationship when the summary of facts accepted by the defendant does not refer to such a relationship nor in the Pre-Sentence Report^[2] does the defendant refer to such a relationship between him and the young victim.
9. Various written testimonials from the church pastor, village mayor, wife and former work supervisor all attested to the defendant being a dedicated churchgoer, an active village member in the untitled men’s group, a well-mannered, quiet individual and a loving and reliable husband and father.
10. I have difficulty reconciling the person they are talking about and the person that he actually is who was capable of carrying out such disgraceful act on the 14-year-old victim. A dedicated churchgoer and as a loving husband to his wife and father to his children (in my view) should not have done what he did on a young girl. I will allow for some discount for the person that he was prior to the offending – that he was of good character.

Discussion

11. According to the summary of facts, it was the defendant who was the aggressor, he approached the victim when the victim was getting ready to leave for school and told her to wait for him at the Savalalo bus stop under the guise that he would take her to school when his intention was to have sexual intercourse with her. The young victim believed and trusted the defendant as he had in previous occasions taken the victim and her siblings to school. Instead, of taking the victim to school immediately when he picked her up the defendant took her to an empty carpark at one of the EPC substations and had sexual intercourse with the victim. The defendant at the time was working for EPC so he knew about the substation where he took the victim. In the circumstances of the offending, the defendant not only exhibited predatorial behaviour but his offending was also pre-meditated.
12. The matter came to light when the young victim became pregnant. The defendant would know that the victim is very young because they are related by marriage and both live in close proximity to each other on the same land.
13. The defendant who is seventeen years older than the victim is a mature and experienced man. I find paragraphs 11 and 12 of Prosecution’s summary of facts to be contradictory of each other. At paragraph 11 it says that the young victim agreed to have sexual intercourse when asked by the defendant. If that was the case, the young victim would voluntarily take off her clothes without being told by the defendant to remove her clothes. There is clearly an imbalance of power in the circumstance of this offending. The young victim found herself alone and at the mercy of a much older defendant. The sexual offending was the victim’s first sexual experience. The defendant noticed blood dripping from the victim’s vagina (paragraph 15). In the Victim Impact Report (VIR) the young victim said that her vagina was sore or painful.^[3]
14. Even if the sexual intercourse was consensual, the law forbids having sexual intercourse with girls under the ages of 12^[4] and 16^[5] as in this case. They are a vulnerable group and are not in a position to make responsible or informed choices about their sexual partners until they come of age. If the accused was not aware of the law, his ignorance is not a defense.
15. The defendant is, married to the victim’s cousin with young children would be seen by the young victim as her uncle and an older member of the family. As such ‘male’ relatives are entrusted that they would look after, protect and respect young females of the family which in this case the defendant has abused and broken that trust.
16. Victims of sexual offending have to live with the long term emotional and psychological scars that remain as well as the negative stigma attached to such a traumatic experience. Life will never be the same with this young victim whose reputation has been severely tarnished. The victim gave birth at a very young age.
17. Sexual offending against young girls by male relatives by blood or marriage is becoming an ‘infected sore’ that is incurable. The Court should not and will not back down from imposing custodial sentences where such sentences is appropriate. In the circumstances of this offending a custodial sentence is appropriate. A custodial sentence also is to denounce such behaviour and to send a message that such behaviour is inappropriate and unacceptable.
18. The circumstances of the offending resulting in the young victim becoming pregnant place the offending at the high end of the scale. It does not matter whether it was done once or a couple of times the fact that such a callous act even occurred is repulsive.

Starting point

19. There are no sentencing bands or guidelines for unlawful sexual connection under s. 59 in regards to victims under 16 years.^[6] This means that the Court is to impose the appropriate sentence according to the circumstances of each case.
20. As I have stated in paragraph [14] a custodial sentence is appropriate. Counsel for the defendant recommends for a starting point of 15 months or 18 months referring to Police v AG^[9] and Police v Iese Siaosi.^[10]
21. The Prosecution cited cases of similar circumstances and recommended a starting point of 2-3 years’ imprisonment.
22. I do not agree with the starting points proposed by Prosecution and/or the Defense Counsel. Each defendant must be sentenced according to the peculiar circumstances of his/her offending. In other words, no two cases are the same and the golden rule is each case is to be judged according to its own peculiar circumstances.
23. In the present matter, the culpability of the defendant is of medium to high end of the scale. I find that the circumstances of the offending warrant a higher starting point than those proposed by Prosecution and Defense.
24. The starting point of 5 years is appropriate and make the following deductions. I deduct 18 months for the defendant’s first offender status or prior good character and further 6 months for the apology and remorse. This leaves 36 months. The last deduction I make is a 25% discount for the early guilty plea of a further 9 months. The end sentence is 27 months or 2 years and 3 months.

Result

25. The defendant is convicted and sentenced to 2 years and 3 months.
    

JUSTICE TUATAGALOA

---

^[1] The defendant could not personally apologize due to the court order (or part of his bail conditions) not to return to where he lived before near the victim. The victim in VIR dated 28 March 2025 confirmed apology by the defendant’s parents.
^[2] Pre-Sentence Report dated 4 March 2025
^[3] Victim Impact Report dated 28 March 2025
^[4] Crimes Act 2013, section 58.
^[5] Crimes Act 2013, section 59.
^[6] The cases of Police v Lua⁷ provides for sentencing guidelines and/or bands for non-penetrative sexual connection against victims under 12 years (s. 58). While as Key v Police⁸ provide sentencing bands for rape for all age groups.
^[9] Police v AG [2024] WSSC 95 (11 November 2024).
^[10] Police v Iese Siaosi (Unreported judgment of Tuala-Warren J dated 26/11/19 in the Supreme Court of Samoa).