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Police v Kalolo [2025] WSDC 7 (20 June 2025)

IN THE DISTRICT COURT OF SAMOA
Police v Kalolo [2025] WSDC 7 (20 June 2025)

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

SAM KALOLO, male of Vaimoso, Apia, Samoa

Defendant

Counsel: Inspector Richard Ah Ching for Prosecution
Mr Alex Su’a for the Defendant

Hearing: 11, 16 and 18 July 2024

Decision on sentence: 20^th June 2025

RESERVED DECISION ON SENTENCE

1. The defendant was found guilty of the charge of indecent assault pursuant to section 60 of the Crimes Act 2013 (CA2013).
2. The CA2013 sets out the penalty as follows:
   • “60. Indecent assault – A person is liable to a term of imprisonment not exceeding 5 years who indecently assaults another person.”

THE OFFENDING

3. Sometime between February and March 2022 at about 5am in the morning, the victim was walking to school at Faleata College. The victim lives at Vaimoso with her mother. In that week, she was on early morning duty and had to be at school to help the teacher who was on duty to prepare the school for the in-coming students.
4. As she came near the Vaimoso bridge, she noticed a car following her and she recognized the alleged defendant and his blue car. It was a small four door hatchback vehicle. The defendant is related to her mother and lives within the same piece of land at Vaimoso-uta.
5. He pulled up next to her and asked to take her to school. The victim replied “No!”. She was at this time getting scared as there were no other persons around. The defendant then came out of his car, grabbed her and pulled her in the car using the left backseat door. He followed in after her and squeezed his way in between the front chairs to the driver’s seat. With his left hand he held on to the victim’s wrists and drove the car with only his right hand.
6. The defendant drove past the school and made a left turn into Maugafolau Road which was a couple of hundred metres from the school. He made another left into a private road and stopped at an isolated and bushy area. The windows were up. He then shifted himself to where the victim was in the back seat, put his hands on her thighs trying to push the victim back at the same time pressing himself upon the victim to kiss her.
7. Despite screaming, the defendant forcefully held her hands simultaneously pushing her left shoulder back and tried to pull her head towards him. He kissed her on the lips about 5 times. As he did this, he said: “Se aua le popole e vave lava”.
8. The victim described that she was very scared at the time, crying and tried to scream. It was then that someone knocked on the window from the outside and asked if someone was screaming. The defendant stopped and being distracted caused the victim to quickly get out and ran all the way to the school.

THE ACCUSED

9. The accused was 26 years old at the time of the offending and working as a fitness trainer at MAI Gym located at Lelata. He was a well presented young man with no prior offending. He continues to live at Vaimoso with his parents and siblings. The defendant and the victim’s mother are closely related and live together within the same piece of land allotted to their respective families.
10. The defendant and his father at the time of the offending were the breadwinners of the family. His father worked as a security personnel at Frankies Supermarket. The defendant currently works as a Tour Operator. Prior to working in the tourism industry, he was a driver for the Parliamentarian Faleomavaega Titi Tafua.

THE VICTIM

11. The Victim at the time of the offending was 19 years old and attending Year 11 at Faleata Junior High College and one of the College Leaders. She appeared reserved and uneasy during the trial given what had happened to her.
12. The Victim Impact Report dated 14^th April 2025 stated that the victim still felt uncomfortable about what happened. The trauma of the incident still made her feel very uneasy. She is reported to say that she did not want to see or hear from the defendant ever again even if he wanted to come and apologise to her and her family.
13. The victim is now married with one child and stays at home to care for her family.

AGGRAVATING FEATURES OF THE OFFENDING

14. The offending was premeditated and opportunistic. I accept that the defendant had harassed the victim by following her in more than one occasion prior to the offending. He either made note or kept a watchful eye on the victim of times she would leave the house. The fact that he followed her at about 5am speaks clear of his determination and infatuation about this victim.
15. The victim was forcefully apprehended into the defendant’s vehicle, held down whilst he drove to a secluded place, and then proceeded to use his brute force to impose himself upon her sexually whilst she screamed for help. After all that the victim had experienced of this defendant, she must have contemplated of the worst case scenario for her in the circumstance. It was fortunate for the victim, an unknown third party came along and gave her the narrow chance to get away.
16. The age disparity was 9 years and the defendant took advantage of her vulnerability in age, physicality and innocence. Moreover, they were related, lived on the same communal land and were well known to each other. There was a clear breach of trust on the part of the defendant.

THE MITIGATING FEATURES OF THE OFFENDING

17. There are no mitigating features of the offending.

AGGRAVATING FEATURES AS AN OFFENDER

18. The defendant is a first offender and there are no aggravating features personal to him as an offender.

MITIGATING FEATURES OF THE OFFENDER

19. I take into account the defendant’s previous good character, the apology to the victim’s family, as well as the consequences of the stigma upon the good reputation of his family name, embarrassment to him and his family and the negative consequence of a conviction upon future prospective employment.
20. In his favour, the defendant had undergone 12 weeks of the Teen Challenge Program as well as 8 weeks of rehabilitation and spiritual counselling from his church Bishop at the Church of Latter Days Saints.

Discussion

21. In approaching uniformity in sentencing, I refer to Police v Petelo Samaila^[1]. Given the prevalence of this type of offending, the court has taken the position that a custodial sentence is warranted unless there are exceptional circumstances that would warrant otherwise.
22. In paragraph 32, in an attempt clarify and distinguish the level of severity of offending and the appropriate starting point, I said this:
    • I am of the view that the starting point of three (3) years imprisonment is excessive given the aggravating circumstances of the offending. If a custodial sentence is warranted, I am of the view that a starting point of 12 months’ maximum for low end offences, 13 – 24 months for medium end offences and 25 months plus for high end offences. The high end starting point would seem consistent with Police v Puni and Police v Oto where a starting point of three (3) years was taken by Justice Slicer and Justice Nelson respectively given the seriousness of the offending involving, inter alia, professional/special relationship and digital penetration. The medium end in my view would be consistent with His Honour Clarke’s sentencing in Ah Kuoi given the indecent act coupled with the associated violence involved. I would respectfully include the offending circumstances in Police v Tauese in the mid-range offences the victim being his sister and the violent act and character of the defendant based on his previous convictions be it perhaps because of some temporary mental disorder.^[2]
23. The gravity of the offending would in my view fall within the medium-range. The starting point would appropriately be 24 months’ custodial sentence. There are no exceptional circumstances relating to the offending and personal to the defendant that would warrant a sentence other than custodial.
24. I would deduct 25% the equivalent of 6 months given the youthful age of the defendant at the time of the offending and his previous good character; 21% or 5 months for entering into the 12 weeks Teen Challenge program and 8 weeks’ rehabilitation with his Latter Day Saints Bishop; and 17% or 4 months for the defendant and his family’s attempt to an apology and reconciliation which was met by the victim’s parents despite the fact that the victim refused to see the defendant again.

CONCLUSION

25. The defendant is sentenced to 9 months in prison less 24 days that he was held in custody.

JUDGE MATA’UTIA RAYMOND SCHUSTER

^[1] [2021] WSDC 1 (10 August 2021)
^[2] Ibid