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Police v Ioane [2005] WSSC 11 (12 August 2005)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

FALEAFA IOANE
of Gautavai, Savaii, and Vaitele-uta.
Accused

Counsel: K Koria for prosecution
Accused in person

Sentence: 12 August 2005

SENTENCE

The charge

The accused is charged under s.58(c) of the Crimes Ordinance 1961 with having induced the victim, a boy under the age of 16 years, to commit an indecent act upon him. The accused has pleaded guilty to the charge. The offence which is the subject of the charge carries a maximum penalty of seven years imprisonment.

The offending

On Wednesday night, 29 June 2005, the victim who resides with his parents at Vaitele-uta went to do some shopping at a shop at Vaitele-uta. He had a torch with him. The accused who also resides at Vaitele-uta went to hang out on the main road at Vaitele-uta when he met the victim in front of the shop. The accused then asked the victim to help him with his torch to find the money he had lost. Somehow the accused was able to make the victim accompany him for some distance further inland looking for his money. When they reached an abandoned house, the accused led the victim inside where he became angry because he could not find his money. The accused then assaulted the victim and forced him to suck his penis. He threatened the victim that he would stab him with a knife if he did not do what he was told. The victim cried but the accused held the victim's hands down and forced him to do as he was told. This went on for about thirty minutes. It was about 9 pm at night when it happened.

According to the pre-sentence report prepared by the probation service who had interviewed the victim, after the indecency the victim quickly got up and ran off screaming at the top of his voice. The victim's parents also told the probation service that when their son arrived home he was vomiting.

I am convinced from the facts that what the accused had told the victim about his lost money for which he needed the victim's assistance in finding was false. It was really a pretext used to deceive the victim and to cover up the accused's real motive until it was too late for the innocent victim to realise what he had been led into.

The victim

The victim is a 10 year old boy. He is attending primary school. According to the victim impact report, the victim missed out on his school exams held the day following this incident because he and his parents had to come to the police station to lodge a complaint against the accused.

Even though the victim did not suffer any physical injuries from this incident, it is quite clear that what happened must have been an extremely frightening and distressful experience for him. No doubt the victim has suffered psychological harm. This can be just as serious and long-lasting as physical injuries. It can also be more serious and long-lasting than physical injuries in some cases. The victim is likely to live with the thought of what has happened to him for the rest of his life.

The accused

The accused is a 28 year old male. According to the pre-sentence report prepared by the probation service, the accused is unemployed and has never been employed in a paid job. He stays at home and helps his family by carrying out daily chores like cooking and general maintenance of his family's property. His parents divorced when he was seven years old. He had a common law wife but they separated after four years. The accused is now residing with his maternal grandmother at Vaitele-uta.

The accused also told the probation service that the absence of a woman in his life to satisfy his sexual needs is a factor that contributed to his offending. However, that is his problem. If he does not have a wife, find one. He is at liberty to find a wife if that is what he needs. He had one before. It would be wrong for him to satisfy his sexual needs by forcing a young boy to commit oral sex upon him.

The accused also told the probation service that he deeply regrets his actions and prays for the victim to forgive and forget him. However, there has been no reconciliation or a formal apology made by the accused and his family to the victim or his family.

The accused is a first offender. He had pleaded guilty at the first opportunity. Since 14 July 2005 he has been remanded in custody.

Mitigating features

The mitigating features of this case are the accused's plea of guilty to the charge at the first opportunity and the fact that the accused is a first offender. The traditional and usual way for Samoans to express remorsefulness for a wrongdoing is for the family of the offender to perform a formal apology to the family of the victim seeking forgiveness. If not that, a member of the family of the offender would approach the family of the victim in a less formal way seeking forgiveness. None of that has been done by the family of the accused. It puts a question mark besides the expression of remorsefulness made by the accused to the probation service. However, I will give the accused the benefit of the doubt and regard his expression of remorsefulness to the probation service as genuine. His plea of guilty at the first opportunity suggests remorsefulness.

Aggravating features

There are a number of aggravating features in this case. First is the deception used by the accused to lead the victim into a situation where the accused could carry out what he had in mind. Secondly, the good deed performed by the victim as asked for by the accused. The victim was assisting with his torch to find the money the accused said he had lost. In assisting the accused until they were some distance further inland, the accused rewarded the victim's help by committing the act with which he is now being charged. Thirdly is the use of violence and threat of violence. When the accused and the victim reached an abandoned house, the accused pretended to be angry as his money could not be found. The accused then assaulted the victim and threatened to stab the victim with a knife if he did not do as he was told. The victim cried. The accused also held the victim's hands down and forced the victim to suck his (the accused's) penis. Fourthly, there was no consent on the part of the victim. Fifthly is the duration of the indecency. Even though it lasted for about thirty minutes it must have been a very frightening and distressful experience for the victim. In such a situation, thirty minutes can be a long time for a victim. Sixthly is the immediate impact of the indecency on the victim. It caused the victim to run away when it was finished screaming at the top of his voice. When the victim arrived home he was vomiting. He also had to miss his school exams the following day. Seventhly, I am in no doubt the victim has suffered psychological harm because of this incident. The last aggravating circumstance is the youth of the victim.

The decision

Generally, but not always, sentences of imprisonment have been imposed for offences which involve sexual indecencies. However, the lengths of the terms of imprisonment have varied because of factual variations between cases. In this case, even-though there is only one incident of indecency, it is very serious indeed. It warrants a term of imprisonment which is not only to punish the accused, but to reflect society's condemnation of this kind of conduct and to serve as a deterrence not only to the accused but also to like-minded people.

After weighing all the circumstances, including the maximum penalty of seven years imprisonment for this offence, the gravity of the offending, as well as the mitigating and aggravating features of the case, the accused is convicted and sentenced to three years and six months imprisonment. The sentence is to commence from 14 July 2005 when the accused was first remanded in custody.

CHIEF JUSTICE