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Police v X [2009] WSSC 46 (27 April 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

"X" male of Saletele Fagaloa
Defendant

Counsels: Ms L. Su’a-Mailo & Ms L. Taimalelagi for the prosecution
Ms M. Tuatagaloa for the defendant

Sentence: 27 April 2009

SENTENCE

After a hearing the defendant was found guilty of indecently assaulting the complainant who is his step-daughter aged 12 years. For the benefit of the press I would remind them of the suppression order in force in respect of all persons involved in this matter for the reasons given by the court in its decision dated 26 March 2009. That includes suppression of the defendants name and village and details.

The defendant is a 61 year old matai described in the pre-sentence report of the Probation Office as "hard working, reliable, a regular church goer supporting a number of children". The defendant has children from a number of relationships and the complainant is the daughter of his current de facto spouse from another man. At the time of this offence the defendant had been raising the complainant as his own daughter for a period of approximately eight years. The couple have now not surprisingly separated as a result of this incident and the complainant resides with her biological mother. The complainant at the time of the offending had just turned twelve years of age and was living with the defendant and her mother and other siblings at the defendant's family.

The facts at the trial showed that around 11pm on 29 November 2007 the defendant was discovered by women of the family engaging in acts of indecent assault on the complainant in a faleoo beside the main house. The complainant's mother was absent from the family that evening a fact no doubt known to the defendant while the women of the family who discovered the defendant were at the front part of the main house. The defendant's acts consisted of in the words of the witnesses "eating the complainant's breasts" and fondling her private parts with his fingers. The women disturbed the defendant and caused him to stop. It is not known whether the complainant consented to such acts but in any event that is irrelevant because a twelve year old is incapable of giving an informed consent to such acts as a matter of law and as a matter of factual reality. What is known as disclosed by the medical report on the complainant is that her hymen only partially remains intact.

I do not propose to re-state the principles the court must follow in sentencing mature defendants who indecently assault young girls and the defendants offending in this case is aggravated by the fact that the complainant is his step-daughter. As stated in Police v Vui [2008] WSSC 27, "young girls are entitled to expect that within their own families they would grow to maturity unmolested and undefiled by the lust of their fathers". And in Police v Sione [2006] WSSC 40, "the victim especially if she is of young age is in a most vulnerable position because of her natural dependency on the accused for support and protection as well as the physical superiority of the accused over her. Normally the victim will have the natural love and affection of a child for her father and expects the same from her father." In this case the father was a step-father.

There is also a disturbing prevalence of offences like this in our community and the need for the courts to pass deterrent sentences of imprisonment is clear. As stated in Police v Faiga [2008] WSSC 96, "terms of imprisonment have been imposed in the past and will continue to be imposed in the hope of deterring not only the particular offender involved but also others who would be like-minded to give in to such lustful urges. The sentence of the court must also convey society's intolerance of this type of offending".

The court is also bound by its obligations under the Convention of the Rights of a Child, obligations which were extensively canvassed in Police v Faiga. There is no question a sentence of imprisonment is called for in this case, the only question is how long.

The aggravating factors are correctly summarized by the prosecutions in submission. The breach of trust placed in the defendant by the complainant, the complainants young age, the almost fifty year age difference between the complainant and the defendant, the nature of the relevant indecent acts and the clear deep seated trauma of the complainant in having to come to court and testify was evident during her testimony.

In mitigation for the defendant his counsel has highlighted the only factors that can be highlighted in his favour namely his previous good record, his first offender status plus the fact that an ifoga has been carried out. I take them into account in reduction of penalty.

The maximum penalty for this offence is 7 years. I take 5½ years as an appropriate starting point. I deduct 12 months for the fact that at 61 years of age this is your first offence and appearance before any court. I deduct 6 months for the ifoga that was carried out and the other factors in your favour as mentioned in the probation report. Had you pleaded guilty I would have given you a further deduction of 18 months from your sentence but you chose not to do so and in that choice put the complainant through the distress of a trial. I can therefore give no deduction for that and neither can I give a deduction for remorse because the probation office report does not convey any expression of your remorse for this. A total of 18 months is therefore deducted from the 5½ years, you are convicted and sentenced to 4 years imprisonment.

JUSTICE NELSON