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Police v Matai'a [2020] WSSC 34 (19 June 2020)

IN THE SUPREME COURT OF SAMOA
Police v Matai’a [2020] WSSC 34

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

ELIFASA MATAI’A, male of Saoluafata, Samoa

Accused

Counsel: A. Matalasi for the Informant
I. Sapolu for Accused

Date: 19^th June 2020

S E N T E N C E

1. The accused appears for sentence after being found guilty in a defended hearing on one count of sexual connection for touching the genetalia of his 15 years old biological daughter.
2. The facts are that the accused who was intoxicated slept where his daughters were sleeping and during the night the victim felt his father’s hand on her stomach and then on her genitalia inside her clothing. There was no penetration and that the touching was brief as the victim turned sideways away from the accused, when she turned back the accused had left.
3. The Prosecution advocated for a custodial sentence with a starting point of five (5) years upon the following aggravating factors accepted by the Court:
   • (a) The offending was pre-meditated;
   • (b) The victim was the accused biological daughter;
   • (c) The victim was 15 years’ old at the time;
   • (d) There is a huge breach of trust involved between a parent-child relationship; and
   • (e) No psychological impact noted in victim impact report.
4. It is noted in the victim impact report (VIR) that there is an element of shame to the victim because people within the village are talking about what happened. It is also noted that the victim was not ‘happy’ within her family environment when the happened and this was obvious from the evidence that the victim went and stayed with her friend for a couple of days.
5. The accused in the pre-sentence report still denies what he did but at the same time expresses remorse and regrets his actions.
6. Counsel for the accused seeks for a non-custodial sentence saying that:
   • (a) The accused has taken the step regarding his alcohol consumption by attending the Salvation Army Alcohol Programme;
   • (b) The accused is truly remorseful;
   • (c) He is the sole if not the main provider for his family despite the fact that he lives away from his wife and children due to his bail conditions;
   • (d) That he has apologised to the victim and according to the victim impact report, the victim has accepted the apology; and
   • (e) The accused’s prior good character.
7. The gravity of this particular offending is at the very low end of the scale. However, I find that the accused still denies what he did and that he thought that doing what he did is him trying to be a good father according to the pre-sentence report (PSR) and this shows that the accused is not truly remorseful. I also find inappropriate for a father that is intoxicated to sleep where his daughters sleep especially when the daughters are of teenage years. These reasons attract a custodial sentence but a low custodial sentence.
8. A custodial sentence is to denounce such behaviour and for the message that such behaviour is inappropriate and unacceptable.
9. I start at 2 ½ years’ starting point; less 12 months for previous good behaviour and mitigating factors noted. I consider appropriate a custodial sentence of 18 months’ imprisonment. The accused is convicted and sentenced accordingly. The accused is eligible for parole after serving half the term.
   

JUSTICE TUATAGALOA