SUPREME COURT OF SAMOA
Police v Soti [2014] WSSC 43

Case name: Police v Tuisauta Soti
Citation: [2014] WSSC 43
Decision date: 21 July 2014
Parties: POLICE (Prosecution) and  tuisauta soti (accused) male of Nofoalii and Siufaga Falelatai
Hearing date(s): 10 and 13 June 2014
File number(s): S5/14, S6/14
Jurisdiction: CRIMINAL
Place of delivery: MULINUU
Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU
On appeal from:
Order:
Representation: 
R Titi for prosecution
Accused in person
Catchwords: 
indecent assault, incestuous conduct, sentence
Words and phrases:
aggravating and mitigating features
Legislation cited:
Crimes Ordinance 1961 s.52(1)(a)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU’U

FILE NOs: S5/14, S6/14

BETWEEN

P   O   L   I   C   E
Prosecution

A  N  D

tuisauta soti male of Nofoalii and Siufaga Falelatai
Accused

Counsel:
R Titi for prosecution
Accused in person 

Sentence:	21 July 2014

S  E  N  T  E  N  C  E 
The charge
1.	The accused appears for sentence on one count of indecent assault of a girl under the age of 12 years, contrary to s.52(1)(a) of the Crimes Ordinance 1961, which carries a maximum penalty of 7 years imprisonment.  He pleaded not guilty to the charge but was found guilty at trial.
The offending
2.	The accused was 33 years old at the time of the offending as it appears from his statement made to the police.  The victim was 9 years old.  The deceased mother of the accused was the sister of the victim’s father.  The accused and the victim are therefore first cousins and they know each other well.  The accused also visits the house of the victim’s family quite often as they are of the same family.
3.	The night of 4 June 2012 was a moonlit night.  The victim was sleeping with her siblings and elderly grandmother inside a mosquito net in their open house.  About midnight, the victim felt someone touching her and her genitals.  She opened her eyes and saw that it was the accused.  She knows the accused well because he is the son of the deceased of her father and he often visited her family’s house.  She also recognised the accused because of his long fluffy hair.
4.	The accused must have sense that he had awakened the victim because he then ran away.  The victim’s six year old brother who was sleeping with the victim and their grandmother inside the mosquito net also saw a person with long fluffy hair.  He woke up his elderly grandmother but by the time his grandmother woke up, the accused had run away.
5.	An aunty of the victim, who is also a sister of the accused’s mother, testified that she was sleeping at the house behind her family’s house where the victim, her young brother, and grandmother were sleeping.  Late on the night in question she saw a male running past the house she was in.  She noticed that the person has fluffy hair and has the same built as the accused whom she knows very well.
6.	Even though the accused denied going to the victim on the night in question, I did not believe his evidence.
The victim
7.	As already mentioned, the victim was 9 years old at the time of the offending and is first cousins with the accused.  She is a student.  In Samoan custom the victim would be regarded as a sister of the accused.  This type of offending is also referred to in Samoan custom as mataifale (incestuous conduct) and moetolo.
The accused
8.	The pre-sentence report shows that at the time of the offending the accused was unemployed but stayed at home doing family chores.  It is not clear, however, whether he is single or married.
9.	As already pointed out, the accused was 33 years old at the time of the offending and that he and the victim are first cousins.  There has, however, been no reconciliation of this matter.  The accused, according to the pre-sentence report, still maintains his innocence.  This is an indication of lack of remorse.
10.	The accused is a first offender.  However, according to his grandmother she is sick and tired of having to meet penalties imposed by the village council on the accused for previous offences including moetolo, committed by the accused.  So the accused is not a person of previous good character.
The aggravating and mitigating features
11.	There are several aggravating features of this offending.  These are: (a) the victim is the first cousin of the accused and in Samoan custom she would be regarded a sister of the accused, (b) the young age of the victim, (c) the age difference of 24 years between the victim and the accused, (d) the present offending is not only mataifale (incestuous) but also moetolo, both of which are frowned upon and despised in Samoan society, and (e) home invasion late at night.  There is no mitigating factor relating to the offending.
12.	In relation to the accused as offender, there is no aggravating or mitigating feature.
Discussions
13.	Having regard to the aggravating features of the offending, I will take 3 years as the starting point for sentence.  There is no addition or deduction to be made to the starting point for sentence.
The result
14.	The accused is sentenced to 3 years imprisonment.  The time he has spent in custody pending the outcome of this matter is to be deducted from that sentence.
•	
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CHIEF JUSTICE