IN THE SUPREME COURT OF SAMOA
Police v Lua [2015] WSSC 156

Case name: 	Police v Lua	
		
Citation: 	[2015] WSSC 156	
		
Decision date: 	06 July 2015	
		
Parties: 	The Police (Prosecution)
Siaosi Lua, male of Vailele (Defendant)	
		
Hearing date(s): 	S3616/14, S3618/14	
		
File number(s): 		
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court, Mulinuu	
		
Judge(s): 	Justice Nelson	
		
On appeal from:		
		
Order:	The charge of sexual connection with a child under 12 years of age convicted and sentenced to 3½ years in prison.  Remand in custody time to be deducted from that term.  
On the second charge of indecent act.  It is not clear from the summary of facts which act is relied on by the prosecution.  I will therefore apply a blanket start point for your conduct as many of these acts carried out by you can constitute an indecent act.  I will start sentence at 2 years and following the same process as with the head charge, an end sentence of 18 months results.  That is to be served concurrent with the other term of imprisonment. 	
		
Representation: 	O Tagaloa and Ms Amosa for prosecution
Defendant unrepresented	
		
Catchwords: 	-	
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:	Key v Police [2013] WSSC 3	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:
		
THE POLICE
Prosecution

AND:

	SIAOSI LUA, male of Vailele.
Defendant

Counsel:	O Tagaloa and Ms Amosa for prosecution
Defendant unrepresented

Sentence:	06 July 2015

SENTENCE
1.	This defendant pleaded guilty to two charges.  Information S3616/14 which states that on 25 October 2014 he did have sexual connection with a child under the age of 12 years.  And information S3618/14 that at the same date and place he did do an indecent act on the same child.  The police summary of facts which the defendant admitted this morning says he is a 48 year old male of Vailele single and works as a fisherman.  The victim is a girl from that village and at the time of these offences was almost 6 years of age.  At the time the defendant was living with the victims family because he is related to the victims grandfather.  He had been there for some time.  Usual suppression order to issue regarding victims details.
2.	On the day in question 25 October 2014 there was a family funeral on.  The defendant however told the probation office that he had just returned from a fishing trip.  To celebrate the success of their trip they bought a large bottle of Russian Vodka and a quantity of vailima beer.  After their drinking session the defendant went home.  The victim was at home carrying out her chores and members of the family were busy with the funeral.  
3.	The summary of facts says when the defendant got home he called the victim to come.  The victim went over to him.  He hugged her licked her neck and kissed her on the mouth and cheeks.  He then made a love bite on her neck and told her to lie down.  He took off her panties and kissed her genitals, unzipped his pants and took out his private part, placed it in the victims hand and made her rub it.  The summary also says he placed his penis to the bum of the young girl and moved it in a thrusting motion.  The victim then told him she wanted to have a drink and she got dressed and left.  
4.	She went into the house of the family and watched TV.  At which time her grandmother noticed the love bite.  Upon questioning she told her what the defendant had done.  On the same night the victim was examined at the Hospital by a doctor who noted the following: two large bruises on the childs neck, these would have been the love bite (see photos).  Small red mark on left elbow.  Examination of her private part indicated that hymenal edges were not seen but there was marked redness.  There was no bleeding and no other abnormalities.   Girl was discharged without further treatment.  
5.	The victim impact report filed by the police indicates that the victim told the examining officer she experienced no pain during the offending except when the defendant sucked her neck.  She also said she was not scared about what was happening to her because she always plays with the defendant at the grave-site and sits on his lap.  It was only when her grandmother saw the bruises on her neck and started getting upset over what had happened that she realized that the defendant had been doing bad things to her.  She now does not want to go near the defendant and is scared of him.  And is disappointed in him because she thought he was a good person.  
6.	The pre-sentence report gives the defendants background.  It indicates he has had an unsettled life.  While he was employed and earning money his mother says that most of the money was spent on alcohol and other personal matters.  She testified to the probation office that he started moving around different parts of the family and spending more time with his friends than with his aiga.  She confirmed that he is currently banished from the family because of this matter and also from their village.  
7.	The defendants version of the offending is given in the pre-sentence report where he says when he got home in an intoxicated condition the victim greeted him and he kissed her on the cheek.  And that the victim asked him to kiss her again and instead of the cheek this time he kissed her on the lips.  He said this immediately caused him to be aroused and he continued by sucking on her neck and creating the love bite.  This led undoubtedly to the other actions that are in the summary of facts.  
8.	It is difficult to understand how a grown man can find the innocent actions of a young child arousing or alluring.  It may be what this defendant most needs is counselling in how to behave around young children.  And where the boundaries of proper behaviour lie.  If that is available in prison I am certainly of the view he is a candidate for such treatment.  Because I cannot send this man to prison forever.  He will come out again and the fear is that if he is not counselled to change his behaviour, he may come out and do it again to some other young girl.  
9.	There is no question in my mind the penalty for what he did demands a term of imprisonment.  To soundly denounce his behaviour, to give him a message and to deliver to others the same deterrent message.  And to make it clear that sexual abuse of young females by older matured males especially those playing a care role in a family will not be tolerated by the court.  Neither is it accepted by the laws of this land.  
10.	I will deal in respect of the two charges with the more serious one first that of sexual connection.  The maximum penalty for sexual connection with a child under 12 years old is now life in prison.  The prosecution are seeking a 9 year imprisonment start point based on the sentencing bands applied in the Peti Key case.  However I decline to follow that approach because in my opinion the Key approach applies more to cases where penile/digital/ some other form of penetration of a complainants body is involved.  There is no evidence that was the case here.  The evidence here including the medical report filed indicates this is a case of rubbing and touching.  And I note that the prosecution specifically amended information S3616/14 the sexual connection charge to remove the oral sex allegation.  But I acknowledge that any of the other acts you carried out on the young girl can constitute a sexual connection by law.  
11.	Considering all the circumstances I will apply a 4 year start point upgraded to 5 years because of your relationship with the victim.  You being a older member of the family who was trusted and accepted by not only the young girl but the entire family.  There are from that start point certain deductions that you qualify for and I will now make these on your behalf.  
12.	Firstly for your guilty plea I will deduct one-quarter of the term namely 15 months leaves a balance of 45 months.  That is because your guilty plea Siaosi has saved this young girl having to testify in court and has saved everyone time and the precious resources of the State and the court.  From that 45 months you are entitled to some recognition for the fact that you have a clean criminal record and your background of “tautua.”  But as observed your background is chequered.  There is no evidence of any contribution to your village and church.  There are no supporting references from members of your “ekalesia” or your “nuu.”  I will therefore only make a nominal deduction of one month.  Leaves 44 months.  The fact that you have been banished by your village must also be taken into account according to law.  But since there is no evidence before me you are “fainuu” or you have made any contributions to village life, again only a nominal deduction is appropriate.  I deduct 2 months, leaves 42 months. 
13.	There are no other deductions Siaosi that you qualify for.  On the charge of sexual connection with a child under 12 years of age convicted and sentenced to 3½ years in prison.  Remand in custody time to be deducted from that term.  
14.	On the second charge of indecent act.  It is not clear from the summary of facts which act is relied on by the prosecution.  I will therefore apply a blanket start point for your conduct as many of these acts carried out by you can constitute an indecent act.  I will start sentence at 2 years and following the same process as with the head charge, an end sentence of 18 months results.  That is to be served concurrent with the other term of imprisonment. 
15.	O lona uiga o le aofai o le taimi e te nofo sala ai i le toese Siaosi mo le mataupu lenei e 3½ tausaga ae toesea ai le taimi lea sa e nofo taofia ai e faatalitali le faaiuga o le mataupu lenei.  Faafetai ua maea lau mataupu.  

JUSTICE NELSON