SUPREME COURT OF SAMOA
Police v Machee [2014] WSSC 51

Case name: Police v Machee
Citation: [2014] WSSC 51
Decision date: 26 September 2014
Parties: Police and Peti Taelega Siui Machee
Hearing date(s): 4 March 2014
File number(s): S2294/13
Jurisdiction: Criminal
Place of delivery: Mulinuu
Judge(s): Justice Vaai
On appeal from:
Order: (Sentence)
Representation: 
F Lagaaia for prosecution
D Roma for defendant
Catchwords: 
Words and phrases:
Legislation cited:
Cases cited:
Police v Maluelue
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:
P  O  L  I  C  E
Prosecution
AND:
PETI TAELEGA SIUI MACHEE male of Lufilufi and Alafua
Defendant
Counsel:	F Lagaali for prosecution
D Roma for defendant

Sentence:	26 September 2014

S  E  N  T  E  N  C  E
1.	The defendant was found guilty after a defended hearing of the offence of indecent assault of a girl under 16 but over 12 years.  The offence was committed in December 2011 at the home of the defendant while the complainant a 14 year old, a younger sister of the defendant’s wife, was visiting before returning to Savaii.
2.	The incident occurred at night after the defendant had returned home from work at about 11pm when the defendant’s 4 children, the complainant and her younger brother were all asleep.  He had been drinking.  The defendant showered before eating.  Both the complainant and her younger brother were asleep in the same bed in the room used as the common room where the defendant’s family also ate their meals.
3.	The defendant then told his wife to go and shower.  Since the wife has been subjected on various occasions to domestic violence, she obeyed for fear of the consequences of disobedience.  She was however suspicious.  She turned on the shower but did not get under it.  She walked back to the room and saw the husband sitting on the floor besides the bed, where the complainant was asleep, with his hands on the bed.  She watched.  He turned and saw her.  He swore at here as she walked back to the shower crying.  He followed her to the shower.  In his own testimony he did not assault her but pulled her during their argument.  Technically he assaulted his wife.  
4.	The complainant confirmed the defendant’s wife’s testimony that the defendant indecently assaulted the complainant.  But the complaint was not laid until 2013 when the wife left the defendant.
The defendant
5.	The 54 year old defendant insisted to the probation service that he is innocent despite the findings of the court.  His obvious lack of remorse will not aggravate the sentence but he will not be entitled to the reduction of sentence for remorse.  The probation service observed that his lack of remorse may be due to his arrogance.
Discussion
6.	The prosecution seeks a custodial sentence and contends that a starting point to commence at 5 years is appropriate in the circumstances.  It submits as aggravating factors the following:
(i)	age disparity of 36 years between the defendant and the complainant, 
(ii)	the incident took place at the defendant’s home where the complainant should have felt safe without being subjected to indecent conduct and in turn the defendant breached the trust placed upon him.
(iii)	the defendant through his not guilty plea necessitated the complainant to testify and relive the ordeal and trauma of the past event.
7.	Counsel for the defendant submitted a general plea of leniency placing emphasis on matters enlarged upon in the pre-sentence report as well as the attached testimonials.
8.	Despite his obvious ill treatment of his wife and an apparent drinking problem, the defendant is portrayed as a hard working individual and a dedicated father to his children.  His church leader in a written testimonial acknowledged that the defendant and his wife sought pastoral assistance to reconcile and mend their differences in October 2013.  He also added that the defendant has learnt from his past mistakes.

9.	The prosecution has cited several comparable sentencing decisions in support of its submission to adopt 5 years as the appropriate starting point.  One of those was Police v Maluelue 14/1/2013 in which the 28 year old defendant indecently assaulted a nine year old neighbour after entering her room at night while she was asleep.  He fondled with her vagina and performed oral sex on the victim.  The court considered 4 years as the appropriate starting point and sentenced the defendant to 18 months imprisonment.
10.	The criminal culpability of this defendant is not as serious as that in Police v Maluelue.  I consider three years as the appropriate starting point taking into account the need to protect young girls and the seriousness of the offending.  
11.	Counsel for the defendant was granted leave to make further submissions on the defendant’s genuine remorse after discussing with the defendant the contents of the probation report.  The court accepts that the defendant is genuinely remorseful.  He has also attempted to address his marital problems by seeking help from his spiritual leaders.
12.	For the defendant’s impeccable previous good character I will deduct 12 months and for his genuine remorse I will deduct a further 12 months.  He will serve 12 months imprisonment less any time he spent in custody.

JUSTICE VAAI