IN THE SUPREME COURT OF SAMOA
Police v JP [2021] WSSC 62

Case name: 	Police v JP	
		
Citation: 	[2021] WSSC 62	
		
Decision date: 	3 December 2012	
		
Parties: 	POLICE v JP	
		
Hearing date(s): 	25 November 2021	
		
File number(s): 	S245/21, S244/21	
		
Jurisdiction: 	Criminal 	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	CHIEF JUSTICE	
		
On appeal from:		
		
Order:	1. 	This sentencing must send the defendant a very clear message that his behaviour is unacceptable.  He needs to be accountable for the enormous harm that he has inflicted on the victim.  A deterrent message also needs to be sent to people like the defendant who may offend in this way; the court will not countenance this predatory and depraved behaviour.  
2. 	The defendant is entitled to be given 6 months credit for his previous good record.  There are no other mitigating factors.  
3. 	Accordingly, I sentence the defendant to imprisonment for a period of 3 years 6 months, less time served. 
-		
		
Representation: 		
		
Catchwords: 	aggravating features – sexual connection with child under 12 years – found guilty – maximum penalty –starting point for sentence – previous good character – sentence 	
		
Words and phrases:	Court order permanently suppressing the name of the victim and the name of the defendant	
		
Legislation cited:	Crimes Act 2013. s.58(50) (b)

Cases cited:	Attorney v Lua [2016] WSCA 1	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

JP
Accused
Counsel:	
F Ioane for prosecution
S Ponifasio for accused

Sentence:	3 December 2021

SENTENCE OF PERESE CJ
4. 	The defendant is a 42-year-old male.  The victim was at the time of the offending, 7 years old.  
5. 	After a defended hearing, the defendant was found guilty by assessors of two counts of sexual connection with child under 12 years pursuant to s.58(50) (b) of the Crimes Act 2013.  
6. 	I hereby make an order permanently suppressing the name of the victim and the name of the defendant on account of the defendant’s relationship with the victim; publication of his name may lead to the identification of the victim in this case.
Documents taken into account
7. 	I have had the benefit of considering submissions filed on behalf of the prosecution and the defendant; a pre-sentence provided by the probation service dated 17 November 2021 together with letters of support.  I have also had the opportunity to read the victim impact report in this matter.
8. 	The facts of this matter are set out as follows:
First offence 
9. 	On a date between 31 December 2018 and 1 January 2020, the victim was watching television in the company of her cousins at the defendant’s home.  The victim’s cousins are the defendant’s children.  The evidence is that the defendant came into the television room and he sat on a long cross-bench.  He sat next to the victim and he proceeded to rub the victim’s genitals with his hand under her panties.  
10. 	The evidence is as follows:
Transcript noted on pages 36 and 37
	Wit:	Na tago aumai le aluga i lo’u vae e kava, na tago Vito aumai le aluga i lo’u vae ae tago mai ia a’u i lo’u pi
	Pros:	I fea lea?
	Wit:	I le living room
	Pros:	A o fea lena o Krystal ma Braxton ma Aurelei?
	Wit:	Lae nofonofo ile nofoa lae matamata le TV
	Pros:	Sei faamanino mai lava ona o lea e tau le lagona lou leo, fai mai oe sa aluga lo’u vae tago mai ia a’u i lo’u pi e sa’o?
	Wit:	i
	Pros:	sa fai sou ofu ile taimi lea?’
	Wit:	i
	Pros:	Faafefea la na tago Vito i lou pi, a’o na e fai lou ofu?
	Wit:	eu’eu
	Pros:	eu’eu faafefea? O lea le mea lena ile lima na e fai mai e oe (as shown by the victim – the two fingers)
	Wit:	o le lima agavale
	Pros:	lima agavale – lima agavale a ai?
	Wit:	a Vito
	Pros:	o le a le mea lea na fai ile lima agavale a Vito?
	Wit:	Sa tago mai ia a’u
	Pros:	lea na fai mai oe lea sa fai ou ofu ile taimi lena e sa’o?
	Wti:	i
	Pros:	E manatua e oe o a ou ofu na fai?
	Wit:	Ou te leiloa
	Pros:	E te le manatua? 
	Wit:	no reply
	Pros:	ae ete le manatua pe na tago totonu o lou ofu pe na tago i fafo?
	Wit:	totonu
	Pros:	totonu la i fea?
	Wit:	totonu o lo’u ofuvae
	Pros	 E iloa e oe le itutino o oe e ta’u o le pi, faasino ile faamasino ma alii ma tamaiti faatonu
	Wit:	(as shown by the witness)
	Pros:	fai mai la oe na tago totonu o lou ofuvae e sa’o lea, tali mai ile ‘i’ pe ‘leai’
	Wit:	i
Second offence 
11. 	Between 31 December 2019 and 1 January 2020 the victim was asleep on her bed in a room at the house in which the defendant and his family lived. The defendant entered the room whilst the victim was sleeping and woke her up.  The defendant sat on the bed and proceeded to show the victim his mobile phone which was at the time showing a video of adult content; he invited the victim to view the phone whilst at the same time he touched the victim’s genitals, again under her panties.  
Transcript noted on page 43
	Pros:	Na tago i fafo po’o totonu o lou ofu?
	Wit:	Totonu
	Pros:	Manatua e oe pe na fai sou panty i le aso lea?
	Wit:	i
	Pros:	Sa tago la i fafo po’o totonu o le panty?
	Wit:	Totonu
	Pros:	Na faalogoina le pa’i atu o le lima o Vito i lau pi?
	Wit:	i
	Pros:	E iloa e oe pe na umi pe leai?
	Wit:	Leai
	Pros:	[ ] e manatua e oe, e faafia na fai e Vito le mea lea ia oe o le tago i lau pi?
	Wit:	Faalua
12. 	The plea in mitigation on behalf of the defendant advances the following mitigating personal factors;
(a) 	The defendant is married with three young children, all below 10 years, and the defendant was the main breadwinner for his family, they live with his wife’s family and he provides support for them;
(b) 	The defendant has had previous good character before this offending.  Ms Ponifasio points to two church ministers references, which speak well of the defendant’s good character;
(c) 	The defendant has a good educational background having reached tertiary education and he has received a certificate in Information Technology from the National University of Samoa; he has also worked in the past for the Samoan Observer and his employer has written a letter speaking highly of him as a punctual, hard working person with a driven work ethic and ability to work creatively under pressure.  
13. 	In relation to a mitigating factor relating to the offending, Ms Ponifasio points to the defendant offering an apology to the victim’s parents and his mother in law in December 2020 when they first raised this matter with the defendant. The defendant apparently has also tried to reach out to the victim’s parents, this attempt appears to have been unsuccessful.  
14. 	The submissions on behalf of the defendant also note the following aggravating features:
(d) 	The vulnerability of the victim given her young age of the time of the offending;
(e) 	The age difference of 24 years between the victim she was 7 at the time of the offending and the defendant who was 31 years old at the time;
(f) 	The gross breach of trust of the close familial connection between the victim and the defendant and the offending occurred in the victim’s mother’s family home where the victim ought to feel safe and protected.
15. 	Ms Ponifasio agrees with the prosecution that the nature of the offending including the aggravating factors places this case as Band 1 (2-6 years) case, pursuant to the sentencing Bands in the Attorney v Lua [2016] WSCA 1.  The offending involved skin to skin touching of the genitalia (the defendant touching the victim’s genitalia with his fingers), and was likely to have limited of duration. 
16. 	Ms Ponifasio submits that an appropriate starting point is 3 years imprisonment, given the presence aggravating factors above.
17. 	The defendant has through his plea in mitigation responsibly conceded his guilt that he did commit these two crimes against a defenceless vulnerable 7-year-old girl.  As noted above, the defendant has already offered an apology to the young girls parents. 
18. 	The prosecution sentencing memorandum submits that the appropriate starting point is 4 years imprisonment.  
19. 	I agree with the prosecution that an appropriate starting point is 4 years imprisonment.  
20. 	This sentencing must send the defendant a very clear message that his behaviour is unacceptable.  He needs to be accountable for the enormous harm that he has inflicted on the victim.  A deterrent message also needs to be sent to people like the defendant who may offend in this way; the court will not countenance this predatory and depraved behaviour.  
21. 	The defendant is entitled to be given 6 months credit for his previous good record.  There are no other mitigating factors.  
22. 	Accordingly, I sentence the defendant to imprisonment for a period of 3 years 6 months, less time served. 
CHIEF JUSTICE