SUPREME COURT OF SAMOA
Police v Solia [2015] WSSC 42

Case name: 	Police v Solia	
		
Citation: 	[2015] WSSC 42	
		
Decision date: 	15 April 2015	
		
Parties: 	POLICE (prosecution) v VAIAOA SOLIA (accused)	
		
Hearing date(s): 		
		
File number(s): 	S221/15, S314/15, S252/15-S254/15	
		
Jurisdiction: 	Criminal 	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Chief Justice Sapolu	
		
On appeal from:		
		
Order:	(a)   On the charge of attempted sexual violation, the accused is discharged without conviction.
(b)  On the charge of doing an indecent act with the intent to insult or offend another person, the accused is also discharged without conviction.
(c) On the charge of assault, the accused is convicted and discharged.
(d)  On the charge of escape from lawful custody, the accused is convicted and sentenced   to 6 months imprisonment.
-		
		
Representation: 	F Lagaaia for prosecution
Accused in person 	
		
Catchwords: 	attempted sexual violation-doing an indecent act with intent to insult or offend another person – assault- escape from lawful custody – maximum penalty – early guilty plea to all charges - sentence	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013,s.49, s.53; (b), s.123,  s.143 (1)	
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NOs:  S221/15, S314/15, S252/15-S254/15

BETWEEN

P  O  L  I  C  E
Prosecution

A  N  D

VAIAOA SOLIA male of Solosolo, Lalovaea and Tafaigata Prison.
Accused

Counsel:	
F Lagaaia for prosecution
Accused in person

Sentence:	15 April 2015
S E N T E N C E
The charge
1. 	The accused appears for sentence on: (a) one charge of attempted sexual violation, contrary to s.49 of the Crimes Act 2013, which carries a maximum penalty of 14 years imprisonment under s.53; (b) one charge of doing an indecent act with intent to insult or offend another person, contrary to s.77 of the Act, which carries a maximum penalty of 2 years imprisonment; (c) one charge of assault, contrary to s.123 of the Act, which carries a maximum penalty of one year imprisonment; and (d) one charge of escape from lawful custody, contrary to s.143 (1) of the Act, which carries a maximum penalty of 2 years imprisonment.  To all charges, the accused pleaded guilty at the earliest opportunity.
The offending
2. 	The accused who is a prisoner at Tafaigata prison escaped from prison on 10 January 2015.  On 11 January 2015 around 4pm in the afternoon, the victim was driving back home towards Apia in a double-cab pick-up vehicle after visiting her parents at Saoluafata.  At Luatuanuu, her car was stopped by the accused who asked her if he could get a lift to Matautu.  The victim agreed and the accused hopped inside the victim’s car and sat behind the driver’s seat.  
3. 	On their way to Apia, the accused kept asking the victim questions and made conversation with her.  There was then silence from the accused and the victim  could not hear anymore from him.  When the victim  looked through the rear vision mirror she saw the accused lying down.  She then looked behind her and saw the assured masturbating behind the driver’s seat.  She asked the accused what he was doing and he touched her hand.  Feeling uncomfortable, the victim stopped her car in front of her relative’s house at Letogo and ran out calling to her relatives for help.  At that time, the accused got out of the car and ran away.  Two men who saw the accused fleeing the car gave chase and caught the accused and brought him back to the victim.  The police were then called and they came and brought the accused to the Apia police station.
The accused
4. 	The accused is 23 years old.  He is a prisoner at Tafaigata prison.  He has a bad police record with a number of previous convictions including two previous convictions of escape from lawful custody.  At the time of this offending, he had also escaped from prison.
The victim 
5. 	The victim is 29 years old.  As a consequence of this offending, she no longer trusts giving people on the road a lift.  She   also became scared of leaving her house at night or feeding her dogs at night.  This incident also temporarily affected her relationship with her husband.
The charge of attempted sexual violation 
6. 	In terms of s.49 (1) of the Crimes Act 2013, sexual violation consists of the act of a male who rapes a female or the act of a person having unlawful sexual connection with another person.  In this case, the type of sexual violation with which the accused is charged is not rape but having unlawful sexual connection with another person.  The expression “sexual connection” is defined in s.50.  The facts as set out in the prosecution’s summary of facts and admitted by the accused  cannot constitute a “sexual connection” as that expression is defined in s.50.  The accused has therefore made a mistake in pleading guilty to this charge.  He should have pleaded not guilty.  Unfortunately, he is not represented by counsel.
The charge of doing an indecent act with intent to insult or offend another person
7. 	Here again there is nothing in the prosecution’s summary of facts admitted by the accused to show that when the accused masturbated behind the driver’s seat of the victim’s car he had an intention to insult or offend the victim who was sitting in the driver’s seat driving her car and watching the road in front of her. It was because of the sudden silence from the accused that made the victim look behind her and not because of any invitation from the accused.  Again, the accused has mistakenly pleaded guilty to this charge when he should have pleaded not guilty. As mentioned, it is unfortunate that the accused is not represented by counsel.
The charge of assault
8. 	As shown from the prosecution’s summary of facts, when the victim looked through her rear vision mirror and saw the accused lying down behind the driver’s seat, she looked back and asked the accused what he was doing.  Without answering the victim, the accused touched her hand.  While technically the touching by the accused of the victim’s hand is an assault, it was a most insignificant assault that perhaps did not merit any charge.
The charge of escape from lawful custody
9. 	This is the only charge of substance against the accused.  His previous convictions, especially his two previous convictions of escape from lawful custody in 2011 and 2013, are an aggravating feature relating to the accused as offender.
Result
10. 	(a)   On the charge of attempted sexual violation, the accused is discharged without
conviction.

(b)  On the charge of doing an indecent act with the intent to insult or offend another person, the accused is also discharged without conviction.
(c)   On the charge of assault, the accused is convicted and discharged.
(d)  On the charge of escape from lawful custody, the accused is convicted and sentenced   to 6 months imprisonment.
Honourable Chief Justice