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Police v Lokeni [2010] WSSC 45 (30 April 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

AND:

FILI LOKENI,
male of Vaoala and Falealupo Savaii
Defendant

Presiding Judge: Justice Slicer

Counsel: Mr. G Patu for the Prosecution
Ms. T Atoa for the Defendant

Sentencing: 30 April 2010

Charge: Indecent Assault

SENTENCE

1. Fili Lokeni has pleaded guilty to the crime of Indecent Assault on a girl under the age of 16 years contrary to the Crimes Ordinance 1961, section 52(1) (a). The acts of indecency occurred on 2 occasions in mid-2008 and between 7 and 11 December. The complainant was nine years old and the defendant twenty-eight. The two were members of an extended family and the indecent acts committed at her home.
   
2. Both acts were ones of touching the vagina on the outside of her underwear. On the first occasion he had enticed the girl with gifts. On the second occasion he stopped his touching when another entered the room. Following a report to police the defendant was interviewed and the informations filed on 26 January 2009 and the defendant has entered his plea at the earliest opportunity. He has shown remorse and an apology given to the girl's family who accepted the contrition and indicated that they would let the law take its course.
   
3. The girl has been harmed and the start of her journey into adolescence made more difficult. She has the advantage of a caring and thoughtful family. Following these events the parents held a number of family meetings with the children. They have told the children 'not to be scared to talk to them when these sorts of things happen to them'. However the investigation and the need to recount the assaults to others have made her withdrawn and depressed.
   
4. Lokeni is 29, single and unemployed. At the time he was living with his aunt's family who were dependent on him in the maintenance of their property. He has no prior convictions and the Court accepts his mother's statement that he is of good character. He has a shy personality and was reticent in his interview with the Probation Service.
   
5. The defendant was in custody from 16 January until 1 March and was returned to prison on 15 March after his village refused to readmit him. The Court accepts his statement made directly to the Court from the dock that he has found prison to be hard and unpleasant and he is fearful of returning.
   
6. The Court accepts that he is remorseful for his conduct but because of his own predicament. He has showed little insight into the seriousness of his conduct and the harm caused to another. The victim is the daughter of his cousin's wife from a previous relationship and his reluctance with a Probation Officer suggests he had difficulty in accepting that he had breached family trust. It may be that his time in prison has affected him for the better.
   
7. Defence counsel urged that there be no further imprisonment so as to permit counseling and assistance not available in prison. The prosecution states that such services are available within the prison system. Both a correct in part. Prisons have limited resources.
   
8. The Court is able to take a middle course given that there are separate informations; a mixture of penalties is permitted. On the first offence a sentence will be imposed which will take into account time served and on the second an order made under the Criminal Procedure Act 1972, section 113.
   
9. He has served an effective sentence of 12 weeks imprisonment. The age of the girl and the use of inducements require a sentence of 3 and a half months imprisonment. He can use the remaining short portion of imprisonment in thinking about the consequences of misconduct.
   
10. In relation to the second information an order will be made in accordance with section 113. That crime as stated in the information was less serious than many which come before the Courts. It was a touching of the vagina on the outside of the underwear. That is not to make light of it. It was a second offence involving the same girl. But one of the aims of sentencing is to prevent repetition. The use of section 113 can include a future subjective deterrence. If the defendant is minded to re-offend he will know, that even if it is a minor offence, he will be brought back to this Court and sentenced for this crime and will almost certainly be sent to prison. The aim of section 113 is also to permit supervision and counseling. Those aims are for the future safety of the community.
    

Orders

(1) Fili Lokeni be convicted of the crime of Indecent Assault.

(2) On information S48/10 Fili Lokeni be sentenced to a term of imprisonment for a period of 2 months such sentence to commence as and from 15 March 2010. The release date ought be 15 May 2010.

(3) On information S50/10 Fili Lokeni is ordered to appear for sentence if called upon within the next 3 years on condition that;

• (a) he submits to the supervision of a Probation Officer for a period of 12 months;
  
• (b) he undertakes such counseling or programmes as directed by a Probation Officer for a period of 12 months;
  
• (c) he commits no crime or offence of a sexual nature or involving violence to the person for a period of 3 years.
  

(4) The name of the complainant and her family and the identity of her village be suppressed.

JUSTICE SLICER