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Police v Parker [2019] WSSC 9 (26 February 2019)

IN THE SUPREME COURT OF SAMOA
Police v Parker [2019] WSSC 9

NOTE: THERE IS A SUPPRESSION ORDER PERMANENTLY SUPPRESSING OR PROHIBITING THE PUBLICATION OF THE NAME OF THE VICTIM AND ANY DETAILS THAT MAY IDENTIFY HER

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Informant

AND:

DAVID STOUT PARTKER male of Vaitoloa & Tapatapao
Accused

Counsel: V. Faasii for Prosecution
K. Kruse for the Accused

Sentence: 26 February 2019

S E N T E N C E

1. The accused appears for sentence on one count of sexual connection with a girl under 12 years old^[1] on Friday, 09 November 2018. The penalty is maximum life imprisonment.^[2]
2. The summary of facts prepared by Prosecution was confirmed by the accused which the summary of facts basically says:
   • On Friday, 09 November 2018 at Vaitoloa between 6pm-7pm the accused who was in the bathroom called out to the victim to come inside the bathroom.

The accused then removed the victim’s shorts and panties, knelt down and licked the victim’s vagina.

• The accused threatened to smack the victim if she tells anyone about what happened.

3. Contradicting what is said in the pre-sentence report (PSR) has the accused telling the probation services that he inserted his finger into the victim’s vagina without taking her shorts and panties off. However, counsel when she discussed this part of the PSR with the accused, the accused confirmed what is in the summary of facts, that he licked the victim’s vagina. The Prosecution maintains that it was licking as in summary of facts and information.
4. The victim impact report has the mother of the victim saying that her young daughter’s vagina was red and she (victim) complains of her vagina being sore.
5. Counsel for the accused in mitigation submitted to the Court that there was no violence involved apart from what is inherent in any sexual offending. That the offending is out of character given the accused previous offending. Furthermore, the accused previous offending is of a different nature. Counsel also submitted for the Court to take into account the accused’s wife’s diabetic condition and that she depends on him therefore incarceration will cause hardship on the wife. I do not accept this part counsel’s submission as a reason for the accused avoiding incarceration.
6. Counsel for the accused said despite attempts by the accused to apologize to the victim’s parents, they (parents) still do not accept the apology. It is understandable given the seriousness of his actions and the harm caused to their very young daughter.
7. Counsel recommended a starting point of 4 years.
8. The accused is 70 years old and is the step-grandfather of the victim. The victim is 7 years old and refers to the accused as ‘papa’. The accused has previous convictions of different offending and the last time he offended was in 2001. The Court will treat him as a first offender.
9. There is a significant breach of trust involved due to the familial relationship of the accused to the victim. The age disparity between the accused is 63 years reflects the vulnerability of the victim in such a situation. The accused threat of violence to smack the victim if she tells anyone is also an aggravating factor.
10. The mother in the victim impact report talks about the difference she sees in her daughter as a result of the offending. Her young daughter is withdrawn and no longer likes to play with other children. She is scared when people come to the house and shows obvious signs of discomfort when the parents show affection towards her. The offending has had a huge impact on the young victim.
11. There is a reason why the law imposes a maximum life imprisonment for sexual offending against children less than 12 years old. It is for the protection and safety from such criminal behaviour.
12. The Prosecution recommended a starting point of eight (8) years.
13. The accused is treated as a ‘first offender’ for the reasons given. There is also a written testimonial from his parish Priest who says that he has known the accused since 2009 and that the accused is a reliable parish member. The accused son, David, in the pre-sentence report talks of the accused as a loving father. Furthermore, his age and early guilty plea will also be taken into account in sentencing.
14. The circumstances of this offending falls in the middle range of band two in Lua v Police.^[3] A 6 year starting point is appropriate. Less 20 months for the mitigating factors including first offender status and age of the accused. A 25% discount is given for the early guilty plea of 13 months. This leaves 3 years and 3 months.
15. The accused is sentenced to 3 years and 3 months’ imprisonment.
    

JUSTICE TUATAGALOA

^[1] Crimes Act 2013, section 50.
^[2] Crimes Act 2013, section 58(1).
^[3]Attorney General v Lua [2016] WSCA 1 (19 February 2016).