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Police v W [2008] WSSC 8 (4 March 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

W
Accused

Editor's note: Sentence by Sapolu CJ

Counsel: L M Sua-Mailo for prosecution
Accused in person

Sentence: 4 March 2008

SENTENCE

The charges

1. The accused appears for sentence on four counts of indecent assault each of which carries a maximum penalty of 7 years imprisonment. To all counts the accused pleaded guilty at the earliest opportunity.

The offending

2. The accused is a 35 year old male of Vailele-uta and Saletele, Fagaloa. He is married with three children which includes a step daughter, one of the two victims in this case.

3. According to the summary of facts which was confirmed by the accused, the victims are the accused’s daughters. The first victim is the accused’s 13 year old biological daughter. The second victim is the accused’s 12 year old step daughter. The victims and the accused were living together in the same household at the time the offences were committed.

4. On Tuesday night 25 September 2007 at around 7:30pm, whilst the victims mother was at work, the accused ordered the victims to spread their sleeping mats, turn off the light and go to sleep. It appears that after the mats were spread out, it was the accused who laid down first. The first victim laid down beside the accused and the second victim laid down beside her sister.

5. Not long after they laid to sleep, the accused sat up and positioned himself at the feet of the first victim, the accused’s biological daughter. The accused spread her legs, took off her shorts and panties before he licked and sucked her vagina. The victim tried to push off the accused’s head but his grip on her did not relent. The accused continued on with this unwelcomed act for a while.

6. The accused then put the first victim’s legs together, positioned himself on top of her, placed his penis in between her legs before he moved back and forth. After a while the accused got off. The victim then pulled herself up and walked to the corner of the house where she crouched down on her knees and watched as the accused turned to the second victim.

7. The accused spread the second victim’s legs, took off her shorts and panties, placed his penis in between her legs and moved up and down. The accused continued this act for a while before he bent and sucked the victim’s vagina. The victim told the accused to get off her but the accused responded by telling her not to tell her mother about what he was doing.

8. After a while, the accused called over to the first victim to come and sleep or he will beat her up. When the first victim reached the accused and her sister, the accused warned them that if they ever told anyone, he will kill himself.

9. On Wednesday night 26 September 2007 at around 7pm, whilst the victims mother was at work again, the accused instructed the victims to prepare their evening meal and their sleeping mats. At around 7:30pm, the accused ordered the victims to turn off the light and go to sleep.

10. It was not long after the victims laid down to sleep that the accused sat up and removed the second victim’s clothes. He then licked and sucked the victim’s vagina before he placed his penis in between her legs and moved up and down. Whilst the second victim laid motionless beside him, the accused reached over to the first victim and proceeded to remove her clothes, licked and sucked her vagina before placing his penis in between her legs. The accused then moved up and down. When he finished, he told the victims not to tell their mother about what he did.

The accused

11. The accused is a carpenter and seems to earn good money. He has no previous convictions.

12. The accused told the probation service that he had been drinking when he committed these offences.

The victims

13. As it appears from the victim impact report on both victims, the victims were attending and enjoying primary school at Vailele at the time of these offences. They have been relocated to a different village due to these offences.

14. When the victims were interviewed for the preparation of a victim impact report, they were reluctant to talk about what happened and seem very intimidated by menton of the accused’s name. Both victims said that before this incident happened they loved and respected the accused, but since this incident neither of them ever wants to see or speak to the accused again. They also expressed feelings of shame and embarrassment due to this incident and expressed a deep fear of the accused.

Aggravating features

15 There are several aggravating features in this case. These are:

(a) the breach by the accused of the victims trust in him as their father,
(b) the vulnerability of the victims,
(c) the young age of the victims being 13 and 12 years old at the time of these offences,
(d) the age difference of 22 and 23 years between the accused and the first victim and second victim respectively,
(e) multiple victims,
(f) multiple offending,
(g) the impact of the offending on the victims, and
(h) the prevalence of this type of offending.

Mitigating features

16. The mitigating features in this case are the accused’s plea of guilty to the charges at the earliest opportunity and the fact that he is a first offender. I will give limited credit for the accused’s expression of remorse to his family and his mother (as it appears from the pre-sentence report) and to the Court.

Should the sentences be cumulative or concurrent

17. Counsel for the prosecution has asked for the sentences to be made cumulative because the offending involves two separate victims and four charges of indecent assault, there being two charges in respect of each victim.

18. In Peseta v Police [1994] WSCA 11, Jeffries J in delivering the judgment of the Court of Appeal said:

"There are occasions when cumulative sentences are called for but there must be something distinctive in the facts for this course to be followed. Usually it is because one block of offending is very materially different from another as might arise when the offending is markedly different in kind and perhaps committed at different times and places. For example a burglary committed at one time and a rape a month later involving utterly different victims might call for the Judge responsible at sentencing to impose cumulative sentences. We make it plain to avoid doubt that these observations are of the broadest type and particular facts of any sentencing must prevail. However, if the general characteristics and nature of the offending is similar then the better course is to make separate sentences concurrent."

19. In Peseta v Police, the accused (appellant) was charged with ten counts of theft as a servant for offences committed over a period of more than one year. The Court held that there was "a consistent pattern of offending over one year" and that "there was nothing distinctive or unusual about the nature of the separate crimes that were committed." Concurrent sentences were therefore appropriate.

20. In Police v X [2007] WSSC 53, this Court referred to the guidelines on the imposition of cumulative or concurrent sentences provided in the New Zealand Sentencing Act 2002 at s.84 which states:

84. Guidance on use of cumulative and concurrent sentences of imprisonment.

"(1) Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind whether or not they are a connected series of offences.

"(2) Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind are a connected series of offences.

"(3) In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the Court may consider-

"(a) the time at which they occurred; or
"(b) the overall nature of the offending; or
"(c) any other relationship between the offences that the Court considers relevant.

21. From the provisions of the New Zealand Sentencing Act 2002, it is clear that as a general rule cumulative sentences of imprisonment are appropriate where the offences with which the accused is being sentenced are of a different kind whether or not they are connected offences. On the other hand, concurrent sentences of imprisonment are generally appropriate where the offences with which the accused is being sentenced are of a similar kind and are connected offences. This simplified statement of principles based on the New Zealand Sentencing Act 2002 is similar to what our Court of Appeal said in Peseta v Police.

22. Applying these statements of principles to the facts of this case, the offences for which the accused is appearing for sentence are not different in kind or " markedly different in kind;" they are all offences of indecent assault. So the offences are of the same kind. The first two offences of indecent assault were committed on the victims on the same night, at the same time, at the same place. The second two offences of indecent assault were also committed on the same victims on the following night, at the same time, at the same place. These are a connected series of offences of the same kind, committed by the same accused, on the same victims, on two consecutive nights, at the same place. In these circumstances, concurrent rather than cumulative sentences are appropriate.

Starting point for sentence

23. In Police v Enelagi [2007] WSSC 95, this Court said:

"The modern approach to sentencing is to start with the sentencing process by setting a starting point. This process was explained by the New Zealand Court of Appeal in R v Davis [2005] NZCA 246 where Robertson J in delivering the judgment of the Court (comprising of himself, Baragwanath and Heath JJ) said:

"In setting the starting point the fundamental focus is on the actual offence and the involvement of the particular person in that offending. We use the term ‘starting point’ in the way it was defined by this Court in R v Taueki [2005] 3 NZLR 372 at [8]:

"The modern approach to sentencing uses as a reference point a starting point taking into account aggravating and mitigating features of the offending, but excluding mitigating and aggravating features related to the offender. Put another way, a starting point is the sentence considered appropriate for the particular offending (the combination of features) for an adult offender after a defended trial’ R v Mako [2000] 2 NZLR 170 at para [24].

In Attorney General v Matalavea [2007] WSCA 8, our Court of Appeal said at para 15:

"In order to compare this case with others we adopt the now conventional approach of identifying a starting point for the conduct, viewed objectively without reference to Mr Matalavea’s personal circumstances before turning to those features as well as others relied on in mitigation. That is the practice adopted in R v Taueki [2005] 3 NZLR 372 (CA)."

I should add here that in Police Faulkner [2007] WSSC 80 this Court also adopted and applied the approach set out in R v Taueki."

24. Taking into account aggravating features of the offending, as there are no mitigating features relating to the offending, without reference to the mitigating features relating to the accused, I have decided to take as starting point 4 years. I do this bearing in mind that the maximum penalty for indecent assault is 7 years imprisonment.

The decision

25. Taking 4 years as starting point for sentence, I deduct by way of mitigation features relating to the accused a discount of 1/3 for the accused’s plea of guilty at the earliest opportunity. That leaves 2 years and 8 months. I deduct another 2 months for the other mitigating features, namely, the fact that the accused is a first offender and his expressions of remorsefulness. That leaves 2 years and 6 months.

26. The accused is convicted on each of the charges against him and sentenced to 2 years and 6 months imprisonment. All sentences are to be concurrent. The total period of 2 months and 15 days during which the accused has been in custody on remand is to be deducted from that sentence.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution