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Police v FIP [2022] WSSC 62 (1 December 2022)

IN THE SUPREME COURT OF SAMOA
Police v FIP [2022] WSSC 62 (01 December 2022)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

FIP, male of MA and FA

Defendant

Counsel: B. Vukalokalo for Prosecution
F. Tufuga for Defendant

Sentence: 1 December 2022

SENTENCE OF ROMA J

Charge

1. Defendant, you were found guilty by a unanimous verdict of the panel of assessors on the 12^th October 2022 on the following charges – one of sexual connection with a child which attracts a maximum penalty of life imprisonment; and one of indecency on a child which attracts a maximum imprisonment term of fourteen (14) years. Following the verdict of the assessors, you were remanded in custody pending sentence by this Court.

Offending

2. The evidence was that on the afternoon of Sunday 13^th December 2020 after your family toonai, you were resting in the living area of your home and watching TV. The victim who is your partner’s daughter and was six (6) years of age at the time way lying next to you. Earlier in the morning you were drinking alcohol and preparing food for the Sunday toonai. The victim’s evidence was that whilst you were in the living area, you lifted her onto your stomach and kissed her on the lips. You then laid her on the mattress, pulled her shorts and panties down to her knees and proceeded to lick her vagina. She said in evidence “na tago miki la’u pi faaaoga ai lona laulaufaiva, na tau lona laulaufaiva i totonu o la’u pi.” When someone opened the door to one of the rooms, you told the victim to quickly pull up her shorts. At the same time, you got up and walked to the fridge. Suspicious of what happened the victim’s aunt called her from inside the room and asked why she was pulling up her shorts. The victim told her aunt that you had pulled her shorts down and licked her vagina. Despite the assessors’ verdict at trial, you continue to plead your innocence in the pre sentence report.

Victim

3. The victim is a young girl now eight (8) years of age but six (6) at the time of the offending. She is your partner’s biological daughter but was raised by her grandmother and aunt. You were living together at the time and it was in your home that the incident occurred. In the victim impact report, she says that she was scared and disgusted by what you did. She does not want to think about what happened, she does not want to be near you and does not want to forgive you. She wants you to be locked away. Aside from what she says in the victim impact report there is no question that the mental and psychological impact of your sexual abuse will remain with her for a long time.

Aggravating Factors

4. The aggravating features of the offending are:
   • (i) the age disparity - the victim was a young girl, six (6) years at the time of the offending, you were 43 years, an age disparity is 37 years;
   • (ii) the familial relationship - the victim is your partner’s biological daughter and although raised by her aunt, you knew of the relationship and all lived in the same household;
   • (iii) breach of trust given to your relationship to the victim;
   • (iv) vulnerability of the victim given her young age and relationship to you;
   • (v) the offending occurred within the sanctity of her home where she should have felt safe and protected;
   • (vi) the impact on the victim - at her young age, you exposed her to unwanted sexual activity which has impacted her physically and will have a lasting impact on her mentally and psychologically.
5. There are no aggravating factors personal to you as offender.

Mitigating Factors

6. There are none in relation to the offending. But personal to you as offender I consider the following:
   • (i) reconciliation - whilst in the victim impact report the victim’s aunt disputes reconciliation, the pre-sentence report confirms from the victim’s uncle that settlement took place and all including the victim’s aunt were present;
   • (ii) your personal circumstances - you are 43 years of age, you ended your formal education at Year 12 level. You have worked a number of jobs with private businesses and organizations to support your family, the latest being with the Coral Reef Academy. You have been unemployed as a result of this matter. You have three (3) children from a previous relationship, you have continued to care for them since entering your present relationship with the victim’s biological mother. Your partner suffers from an illness and was hospitalised when the presentence report was prepared. In the report, your mother, your sister in law and a nephew speak of your previous good character. You are a first offender.

Discussion

7. You face serious charges of sexual offending against a young girl. One of the charges attracts a life imprisonment term as maximum penalty. The sentence must therefore hold you accountable for the harm you have done to the victim; and promote in you a sense of responsibility and an acknowledgement for that harm. It must provide for the interests of the victim; denounce your conduct and deter you and other like minded members of the community from committing similar offending. A custodial sentence will appropriately serve those purposes.
8. Prosecution submits that your offending falls within the higher end of Band one of the guideline judgment in Attorney General v. Lua [2016] WSCA 1 (19 February 2016). In that case, the Court of Appeal determined sentencing band for cases where unlawful sexual connection against children under 12 is the lead offence and there is no penetrative act. Prosecution recommends a starting point of five (5) years. They rely further on the case of Police v. PH [2019] WSSC 83 (20 September 2019) and Police v. Nicky Ah Ching (29 June 2018, Unreported).
9. Your Counsel on the other hand recommends a starting point of three and a half (3 & ½) years. He relies on the recent case of Police v. FP [2022] WSSC 40 (16 June 2022). The sexual connection in that case involved the accused putting his hand inside the four (4) year old victim’s shorts and panties and rubbing her vagina. The court considered as observed in the Attorney General v. Lua that the offending was a single incident and of short duration; and determined appropriate a starting point of three and a half (3 & ½) years.
10. Whilst your offending might have been a single incident of limited duration, it involved a connection between your mouth and tongue and the victim’s genitalia; and there is a close familial relationship between you and the six (6) year old victim. I therefore find your offending to be on the high end of Band one. I adopt a starting point of five and a half (5 & ½) years on the lead charge of sexual connection on a child. I make the following deductions – six (6) months for the apology and reconciliation; and eighteen (18) months for your personal circumstances including your first offender status. The end sentence is three and a half (3 & ½) years

Result

11. Accordingly I sentence you as follows:
    • (a) On the charge of sexual connection on a child, you are convicted and sentenced to three and a half (3 & ½) years’ imprisonment;
    • (b) On the charge of indecent act on a child, you are convicted and sentenced to eighteen (18) months’ imprisonment;
    • (c) The sentences are to be served concurrently less time spent in custody.

JUSTICE ROMA