IN THE DISTRICT COURT OF SAMOA
Police v Ah Wong [2025] WSDC 1 (4 April 2025)

Case name: 	Police v Ah Wong	
		
Citation: 	[2025] WSDC 1	
		
Decision date: 	04 April 2025	
		
Parties: 	POLICE (Plaintiff) v FOMA’I AH WONG (Defendant)	
		
Hearing date(s): 		
		
File number(s): 	2024-01768 DC:/CR/UP	
		
Jurisdiction: 	DISTRICT (Criminal)	
		
Place of delivery: 	District Court of Samoa, Mulinuu	
		
Judge(s): 	Judge Mata’utia Raymond Schuster	
		
On appeal from:		
		
Order:	The defendant is convicted and ordered to serve a total of 7 months and 2 weeks’ imprisonment to commence forthwith.

Representation: 	Police Prosecution Division for Prosecution
Mr Alex Su’a for Accused	
		
Catchwords: 	Charges, the offending, the accused, the victim, aggravating features of the offending, mitigating features of the offending, conclusion	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013s59 (1), (3)	
		
Cases cited:	Police v Raymond Paulo [2022] WSDC 1 (27 June 2022) paragraph 11, 44;
Police v Lunai [2015] WSSC 176;
Police v Sale [2015] WSSC 259;
Police 	v Taulapapa [2014] WSSC 66.

		
Summary of decision:		

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:	

FOMA’I AH WONG,  male of Vaitele-uta

Defendant

Counsel:		Police Prosecution Division	
			Mr Alex Su’a for Defendant

Sentence hearing: 	9th December 2024
	
Decision:		 4th April 2025	
	
SENTENCING DECISION
1. 	The accused appears for sentencing on one count of committing an indecent act on a young person under 16 years of age pursuant to section 59(3) of the Crimes Act 2013 (CA2013) which carries a maximum penalty of seven (7) years imprisonment:
	59. Sexual conduct with young person under 16 – ….
	…………
	(3) A person who does an indecent act with or on a young person is liable to imprisonment for a term not exceeding 7 years. 
	………..

2. 	The accused entered a guilty plea to the charge on the 9th April 2024.
The Offending
3. 	The Prosecution Summary of Facts dated 27th May 2024 was accepted by the accused through counsel. He was 34 years old at the time of the offending. The defendant resides at Vaitele-uta, was in a defacto relationship where they were blessed with two young 	girls. At the time of the offending, he operated a taxi under the “Triple 7 Taxi Stand” which is based adjoining the retail supermarket that belongs to the Victims mother at Vaitele-	fou. 
4. 	At about 1130pm on the 11th May 2022, the victim (who was 13 years old at the time) was managing her mother’s retail supermarket. The defendant was on late night duty at 	the Taxi Stand waiting for business. It is accepted that the victim, her mother and the defendant were known to each other.
5. 	After the supermarket closed that evening, the victims mother went to sleep not knowing that the victim left the house and went over to the Taxi Stand. She got inside the defendants vehicle in the front passenger seat and started watching her phone. 
6. 	The defendant asked her if her mother was sound asleep. Then he proceeded to kiss the victim on the mouth and placed his right hand inside her panties and fondled her vagina. It was only the loud closing of the boot door by one of the other drivers that was with the defendant at the stand that evening that caused the defendant to stop. He then started the taxi and drove to the perimeter of the victims property, kissed her again before she got out and walked to her house.
The Accused
7. 	The accused is separated from his defacto partner. He had been working for about four years with the Taxi Stand up to the date of the this incident. He lives with his mother and her siblings at Vaitele-uta. He is currently in a long distance relationship with another woman who lives in New Zealand. Their family financial support rely on the employment of his uncle and the defendants taxi service. 
8. 	The character references from the defendants current defacto partner, his Pastor 	Faauuga Taase, family matai Selu Tiliola and his taxi employer Tiai Maulio all speak of a 	reliable and hardworking man, good father, work colleague and serving Christian. The 	Probation Report suggests that the offending was out of character, the defendant was 	remorseful and noting the fact that the victim was the instigator and a willing participant. This is understandable as the Police summary of facts was not available at the time of the interview to Probation and this be the version of the defendant.
9. 	The Probation report recommends supervision instead of a custodial sentence as the 	defendant is deserving of a second chance based on the circumstances. Mr Su’a and even the Prosecution support this recommendation but without reference to any exceptional circumstance.
The Victim
10. 	The victim at the time was attending Year 8 at Lalovaea Primary School. She lived with her 	mother and aunty at Vaitele-fou. She assists her mother by looking after the supermarket which shows her level of early responsibility development and commercial acumen.
11. 	There is no trauma assessment report as one would expect with cases such as this. The Victim Impact Report appears to relate to the victims mother who stated she suffered mentally and emotional because of what happened to her daughter. She was clearly hurt to the point that she would avoid requests or attempts by the defendant to do an apology 	or reconciliation. She was so overwhelmed that she had to give up temporarily the victim to the care of the Samoa Victim Support Group.
12. 	Despite that, it would not be beyond me to infer that the psychological, mental and emotional distress on the victim resulting from trauma relating to this sexual offending is very real and unimaginable. Even with our best efforts, our society is so small that nothing can be concealed behind an order of name suppression. The embarrassment and social 	stigma that this victim would have faced could not be expressed in words especially with 	the suggestion that the victim in some way consented. 
13. 	I repeat what was said in Police v Raymond Paulo that:
	“The absence of such an assessment on this victim is unforgiving notwithstanding that the facts suggest that the victim may have voluntarily participated (either in the whole or in part) in each of the offending. Such an assessment would go a long way in helping the victim deal with the offending as well as his own conduct or perception as to what is right and what is wrong. This assessment must be done by a professional clinical psychologist and must be made mandatory for all sexual offence cases involving young children.”
Aggravating features of the offending
14. 	In respect of the accused’s offending, the prosecution submit three aggravating features as highlighted in their sentencing memorandum. These are:
(i) 	the age difference with the victim is 21 years
(ii) 	the vulnerability of the victim given her age and that 	she was befriended by the defendant
(iii) 	the need for deterrence to send a strong message to like-minded persons that taking advantage of the immaturity and vulnerability of young children especially girls will not be tolerated to denounce and hold the perpetrators accountable 

15. 	In this case I would add premeditation and opportunistic for I am able to infer from the summary of facts that there must have been planning on the part of the defendant that encouraged the victim to seek an encounter with him that night. He accepts the fact that he checked with the victim if her mother was sound asleep because this would trigger her 	secret exit and assure the victim would not be sought after that night.
16. 	Mr Su’a accepts that the seriousness of the charge is an aggravating feature of the offending as it carries a maximum penalty of 7 year’s imprisonment given the need to protect young girls, even from themselves, from sexual offending of any kind.
17. 	Similar to the facts of Police v Raymond Paulo, I would further add that the fact the victim and her family were well known to the defendant and vice versa, it did not make sense that the opportunity just presented itself. There must have been earlier flirtatious communications that may have existed for some time that opened the door to this particular but unfortunate outcome for the victim. It is not uncommon for young girls to be attracted to older men in such circumstances. The issue is when older men with poor judgment and the absence of self-control manipulate and exploit an innocent infatuation from such a young and immature girl.
The mitigating features of the offending
18. 	On the circumstances, there are no mitigating features of the offender’s actions during 	the commission of the offense. He submits in the Probation Report that he tried to distance himself from the victim and did his best to push her away. However, this is contrary to the Prosecution summary of facts that he now accepts.
Aggravating features as an offender
19. 	The accused is a first offender and there are no aggravating features personal to him as an offender.
Mitigating factors in favour of the offender
20. 	The prosecution submits as mitigating features in respect of the accused’s are:
(a) 	His early guilty plea;
(b) 	His first offender status;
(c) 	The successful program with Samoa Victim Support; and
(d) 	The rehabilitation and spiritual program with his pastor
21. 	I take into account the accused’s early guilty plea, his previous good character, the consequences of publication, personal and familial humiliation, perception and feelings of embarrassment, disgrace and dishonour of his family’s good name. 
22. 	Mr Su’a submits that the accused is remorseful of his actions and has shown this via his cooperation with the authorities and desire to convey his regret and apology to the Victim	and her mother. The assertion that the victim instigated the sexual encounter as a mitigating factor must be put to rest for it is not the first time this has been asserted with 	some confidence in previous matters.
23. 	I repeat what was said in Police v Raymond Paulo:
	I do not consider the victim’s actions which appear to be consensual participation as a mitigating factor. It would be meaningless to stipulate, on judicial notice, that a child under 16 years cannot be presumed to fully understand the meaning of what is right from wrong in relation to 	inappropriate sexual advances given their age, immaturity and the absence of appropriate knowledge and experience. To then accept that the victim consented to a sexual assault or indecent act would be illogical and incoherent with this rationale.
Previous Sentencing Tariff
24. 	Mr Su’a referred me to three previous cases of Police v Lunai, Police v Sale  and Police v Taulapapa. Mr Su’a submitted that these cases suggested that the usual sentencing 	had been non-custodial so far as the Supreme Court was concerned. This is not correct. It is clear from each of these cases that the Supreme Court stipulated that custodial sentence was the rule for sexual offences involving child victims under the age of 16 unless there were exceptional circumstances to find otherwise. 
25. 	In Lunai, the defendant was 23 years old and the victim was 15. They had been in a relationship since December 2013. The defendant was charged with having sexual 	intercourse with the victim in September 2014 and again in February 2015 pursuant to section 59(1) of the CA2013. Justice Tuatagaloa took into account two exceptional factors: 	(1) that the defendant was 9 years older than the victim whereas the Supreme Court would usually impose custodial sentence where the age gap was 10 years or more; and (2) that he was still a young man with a bright future as an NUS student. The defendant was convicted and sentenced to 15 months supervision.
26. 	In Taulapapa, the defendant was 30 years old at the time of the offending. The victim was only 14. His Honour Chief Justice Patu sentenced the defendant to 12 months supervision and 200 hours community work. The exceptional circumstances were that (1) the defendant and the victim were living together as husband and wife; (2) the father of the victim consented for the victim to be the wife of the defendant; and (3) both the defendant and the victim appeared undeterred to live together despite the consequence of the law.
27. 	Finally, in Sale, the defendant was 17 years old and the victim 15. They had sexual 	intercourse 2 days prior to the victim turning 16 years old. Justice Aitken took into account the exceptional circumstance that the defendant was more naïve, immature and perhaps ignorant as to the nature of the sexual act rather than reflective of an intention to commit a criminal act. The defendant was convicted and sentenced to 12 months’ supervision and 100 hours’ community work. 
Section 59(3) offence and discussion
28. 	With the current case, the above three cases can clearly be distinguished on the basis of the offending provision section 59(1) and the exceptional circumstances relevant to the 	merits of those particular cases. Section 59(1) carries a maximum 10 years’ imprisonment 	and section 59(3) imposes a maximum 7 years. This, in and of itself, does not validate an argument that where a custodial sentence is not appropriate under the more serious section 59(1), then in most if not all cases under section 59(3), a custodial sentence would 	be out of proportion and extreme in comparison to section 59(1). Such an argument would be absurd, illogical and incoherent according to law and good practice.
29. 	The leading case so far as sentencing is concerned for crimes under section 59(3) is Police v Raymond Paulo which sets a guiding tariff for sexual offences relating to child victims from the age of 12 and under the age of 16 years. I refer the parties to this case and will 	not repeat the relevant parts in verbatim.
30. 	I note the recommendation for a non-custodial sentence in the Pre-sentence report, the Prosecution memorandum and as submitted by Mr Su’a. However, I am of the view that 	a custodial sentence is appropriate. The circumstances of the offending are serious 	because of the intruding and intrusive nature of the offending act on the victims most private part, the overall trauma on the victim herself but also on her mother and family. What appears to be consensual but ill-conceived behaviour of the victim is not a mitigating feature of the offending as to the circumstances of this case. 
31. 	There are no exceptional circumstances particular to the offending as well as personal to the defendant in this case that would warrant consideration of a non-custodial sentence.
32. 	I would consider the offending of the defendant to fall within the medium band where 	time and some planning was involved, it was opportunistic, multiple indecent acts were done which only stopped when interrupted by a co-worker and the violation of the victims most private part. This attracts a starting point of 36 months’ imprisonment. The starting point accounts for the gravity of the offending.
33. 	I have taken into account the defendants guilty plea which has saved the victim from 	having to go through the whole traumatic ordeal again and the cost to this country. I have deducted the maximum 25% which is 9 months. For the defendant’s good character as 	evident from the testimonies annexed to the Pre-sentence report – I have deducted 20% which is 7.2 months. For the defendant’s desire but unsuccessful attempts to do an apology and reconciliation, I have deducted 10% which amounts to 3.6 months. Finally for the rehabilitation program with his pastor and “Tama Faufautua program” with Samoa victim Support Group, I deduct the maximum 25% which is 9 months.
34. 	The main purpose of this sentence is to deter like-minded persons and denounce that the Courts will no longer tolerate and be lenient with this type of behaviour in order to protect the vulnerable young children of our community. 
Conclusion 
35. 	The defendant is convicted and ordered to serve a total of 7 months and 2 weeks’ imprisonment to commence forthwith.
JUDGE MATAUTIA RAYMOND SCHUSTER